DANG THI THANH MAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 264/2023, [2024] HKCA 932

On appeal from [2023] HKCFI 2045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2023

(ON APPEAL FROM HCAL NO 1218 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 17 August 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 22 August 2023.

2.  The applicant is a national of Vietnam. She claimed that she entered into Hong Kong illegally on 7 July 2015. She was arrested by the police on 10 July 2015. A removal order was issued against the applicant on 5 August 2015. She then lodged a non-refoulement claim on 6 August 2015 on the basis that, if refouled, she would be harmed or killed by her creditor as she was unable to repay the debt.

The Director’s decision

3.  By a Notice of Decision dated 16 January 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Having considered all the factors of the case, the Director came to the view that the alleged ill-treatment had not attained the requisite minimum level of severity and did not accept that the creditor has any real intention to kill the applicant. The Director found that the applicant’s problem arose from a private dispute and there was no involvement of the Vietnamese government or officials. Moreover, the Director held that the availability of state protection and internal relocation alternatives in Vietnam further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 21 February 2019. In view of the significant inconsistencies in her testimony, the Board found the applicant dishonest and unreliable. The Board further assessed that the applicant would be able to avoid the perceived risk of harm by relocating to other places in Vietnam without undue hardship. The Board concluded that the applicant failed to establish her claim on all applicable grounds and rejected her appeal on 30 April 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 7 May 2019 to seek leave to apply for judicial review against the decision of the Board. In her supporting affirmation, she only reiterated the problems she would face upon her return to Vietnam, without putting forward any grounds for her intended challenge against the Board’s decision.

The judge’s decision

7.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge held that the applicant does not have any valid ground to challenge the Board’s decision and she failed to show any realistic prospect of success in her intended judicial review. Thus, the leave application was refused on 17 August 2023.

Grounds of appeal

8.  The applicant stated her grounds of appeal in her Notice of Appeal and supporting affirmation as follows:

(1)  If she returns to Vietnam, she will be tortured or killed by the Vietnamese police or authorities;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  The applicant is a “reactionary” so she will be pursued and arrested by the police and Vietnamese government no matter where she goes in Vietnam;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)  The Director and the Board did not see the grounds to reserve their decisions.

9.  The applicant has submitted a written consent to the disposal of her appeal on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 22 August 2023 requiring the applicant to lodge skeleton argument on or before 5 September 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, she shall be deemed to have abandoned her right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions in the appeal.

10.  We proceed to consider her appeal on the basis of the available documents.

Analysis and disposition

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

13.  The applicant’s assertions that she is a reactionary and that she will be pursued by the Vietnamese police and government were not raised in her non-refoulement claim and her leave application before the lower court. In any event, such assertions are not supported by any particulars or evidence.

14.  The rest of the grounds were also not raised in her leave application before the court below and not supported by any evidence. The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  For the above reasons, the grounds of appeal are devoid of merit. We therefore dismiss this appeal.