DO VAN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 271/2024, [2024] HKCA 967

On Appeal From [2024] HKCFI 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2024

(ON APPEAL FROM HCAL NO 1712 OF 2019)

________________________

_____________________

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 June 2024 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 December 2017.

BACKGROUND

2.  The Applicant is a national of Vietnam. He claimed that he entered Hong Kong illegally on 4 May 2015. He was arrested by the police on the same day. On 27 May 2015, he lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by his creditor because of his inability to repay a loan. He also claimed that he would be detained by the Vietnamese police upon his return to Vietnam. Details of the Applicant’s claim have been summarised by the Judge at §§4-10 of the CALL-1 Form.

3.  By a Notice of Decision dated 21 December 2017 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds, including BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 17 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§16-17 of the CALL-1 Form:

“[16] The Board considered that the creditor was merely using the threats and assaults to pressurise the applicant in repayment of the loan, with no intention to materialise his threats [39]. Meanwhile, the cause of death of his wife was based on double hearsay evidence [42]. As to the applicant’s fear to be detained by the police upon return, the Board found no basis for such claim given that he encountered no trouble from the police since his release for suspected drug trafficking in 1996 up to May 2015 when he decided to leave Vietnam [45]. In any event, it was merely his speculation that the police would not render any assistance to him [47] and that he could also consider internal relocation to avoid the claimed threats [56] - [58].

[17] Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [6] - [9], [37] - [48], BOR 2 and BOR 3 risk [10] - [13], [49] - [52] or Persecution risk [14] - [15], [53] - [55]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.”

5.  On 21 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely repeated the factual basis of his non-refoulement claim.

THE JUDGE’S DECISION

6.  On 25 June 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[20] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[21] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he has no money to pay the creditor and if he returns to Vietnam, he will be killed.

…

[23] For the reasons given, the Board found that the applicant will not be subjected to the applicable risks if he returns to Vietnam. I note that the applicant disagrees with the Board. However, there is no evidence from the applicant to challenge the Board’s findings.

[24] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal dated 9 July 2024, the Applicant repeats his claim that his life will be seriously threatened, and he will probably die, if he returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. He disagrees with the Director’s assessment that he can move to another location in Vietnam to avoid his creditor for various reasons. He alleges that the Immigration Department failed to consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  In his affirmation of the same date, the Applicant states that he understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but he fails to identify what that ground may be.

9.  By a written confirmation dated 9 July 2024, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 9 July 2024.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. The Applicant has failed to show any such error of law or procedural unfairness or irrationality in the present case.

13.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

14.  The Applicant’s appeal against the Order has no merit and is dismissed.