DINH CHINH BO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 550/2021

[2022] HKCA 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2021

(ON APPEAL FROM HCAL NO 1248 OF 2018)

________________________

________________________

____________________

J U D G M E N T

____________________

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

1.  On 24 November 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 6 December 2021.

2.  The applicant is a national of Vietnam. He is 32 years old. He last entered Hong Kong illegally on 21 December 2013 and was arrested by the police on 24 December 2013. He lodged a non-refoulement claim on 29 December 2013 on the basis that he would be harmed or killed by his creditor. After the commencement of unified screening mechanism, his claim was assessed on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

The Director’s decision

3.  By a Notice of Decision dated 30 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds.

4.  Taking into account the intensity and frequency of past ill-treatment from the creditor, the Director assessed that the level of risk of harm from the creditor is low. The Director considered there is no evidence to show that the harm inflicted upon the applicant by the creditor had attained the requisite minimum level of severity. The Director also held that the creditor and his men do not have genuine intention to kill the applicant, as indicated by the fact that they only made verbal threats when they visited the applicant’s home after the applicant had been discharged from hospital but did not cause any physical harm upon the applicant. Moreover, the Director found that the applicant’s problem is entirely a private dispute without any involvement of the Vietnamese government. The Director considered that the deficiency of a single police station could not represent the whole police force or the Vietnamese government and assessed that reasonable state protection and internal relocation alternatives are available to the applicant in Vietnam which would further lower or negate the perceived risk.

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 8 June 2018. The Board considered that the creditor had no intention to kill the applicant as reflected from the fact that the creditor and/or his men did not attack the applicant further when the creditor came to chase for repayment on two occasions after the applicant returned home from hospital in November 2013. Although the evidence suggested that the applicant was attacked once, the Board found that the applicant’s injuries were not serious at all. Besides, the Board found that the applicant’s problem is purely a private dispute and not on account of race, religion, nationality, political opinion or membership of a particular social group. There is also no evidence to show that the creditor is in any way related to the authorities. The Board noted that the Vietnamese police did take up the applicant’s complaint and there is no evidence to show that the police was unwilling to look into the case. The Board also assessed there should be no difficulty for the applicant to relocate to other cities in Vietnam to avoid his creditor. Therefore, the Board rejected the appeal on 20 June 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 3 July 2018 to seek leave to apply for judicial review against the decision of the Board. He only reiterated the risk of harm he may face in Vietnam without putting forward any grounds for his intended challenge against the Board’s decision.

The judge’s decision

7.  As the applicant did not request for an oral hearing, DHCJ K W Lung considered his leave application on paper. The judge held that there is no error of law or procedural unfairness in the Board’s findings and concluded that there is no realistic prospect of success in the applicant’s proposed judicial review. Therefore, the judge dismissed the leave application on 24 November 2021.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in his Notice of Appeal filed on 6 December 2021:

(1)  the gravity of his circumstances has not been weighed or realized by the Director and the Board; and

(2)  he should be given an opportunity to plead his case properly.

Non-compliance with directions for lodging skeleton argument

9.  Directions were given by the Registrar of Civil Appeals on 20 January 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal.

10.  The appeal was scheduled to be heard on 22 March 2022. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 22 February 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 2 March 2022 that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

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.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13.  The applicant’s grounds in this appeal are just bare assertions without particulars, elaboration or evidence in support. He was given opportunities to plead his case at the interview and the oral hearing before the Immigration officer and the Board. The Director and the Board had given detailed analysis and explanation for their findings and their decisions are well founded.

14.  Furthermore, the applicant did not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for him to bring judicial review against the Board’s decision. He failed to show 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.

15.  There being no merits in this appeal, we make an order that the appeal be dismissed.