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

CACV 62/2023, [2023] HKCA 1373

On Appeal From [2023] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 62 OF 2023

(ON APPEAL FROM HCAL NO 85 OF 2019)

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J U D G M E N T

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

Introduction

1.  On 21 February 2023, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 31 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 5 January 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 27 February 2023, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.

3.  Pursuant to the directions of Registrar of Civil Appeals made on 27 February 2023, the applicant should lodge his written submissions on or before 13 March 2023.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions by the deadline, he will be deemed to have abandoned his right to rely on written submissions and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 8 August 2015 and surrendered to the Immigration Department on 12 August 2015.  On the same day, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by his creditor as he had defaulted in repaying a loan.  The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2023] HKCFI 329).

6.  By a Notice of Decision dated 5 January 2017, the Director assessed the applicant’s claim on grounds relating to BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 26 November 2018, and by its decision dated 31 December 2018, the Board dismissed the appeal.  For the reasons set out at [37] – [70], the Board found that the applicant had failed to establish a real risk pertinent to any of the applicable grounds.  Regarding his claimed fear of his creditor, it was his own evidence that he has not been attacked by his creditor or suffered any injury, and that he had only been verbally threatened by his creditor that he would be beaten up if he failed to repay his debt.  In any event, it was a private monetary dispute between the applicant and his creditor without any official involvement.  Relevant country of origin information (“COI”) suggested that there is reasonable state protection [39] – [50].  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

8.  On 9 January 2019, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  He did not advance any valid grounds for relief in his Form or supporting affirmation save for saying that he would be harmed or killed by his creditor over his outstanding debt if refouled.

9.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [13] – [18] of the Form CALL-1:

“DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1) … …Assessment of evidence and COI materials and 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.”

16. The reasons in paragraph 12, supra are only his opinions. They are not valid reasons to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.   The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

10.  On 27 February 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  He stated the following grounds in his Notice of Appeal:

(1)  If the applicant returns to Vietnam, he will be tortured, beaten or even killed because the creditors and gangsters in Vietnam are different from those in Hong Kong, and most of them are cruel and violent.  They disregarded the law and are willing to kill people.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.  The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

11.  In his supporting affirmation of the same date, he deposed:

“…I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

Additionally, I was informed that the [Director] and the [Board] did not see the grounds to reverse their decision.”

Legal principles

12.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.  The grounds provided by the applicant in his Notice of Appeal are just bare assertions without particulars or basis.  He did not in his Notice of Appeal or supporting affirmation provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. 

14.  It is clear from the Board’s decision that there was no reliable evidence of any real intention of the creditor to seriously harm the applicant other than to put pressure on him to repay his debt.  It was not believed that the applicant would face any real risk of harm or ill-treatment upon his return to Vietnam.  In any event, it was a private monetary dispute without any official involvement, and relevant COI suggested that reasonable state protection is available.  As mentioned earlier, COI and risk of harm are within the province of the Board and the court would not intervene unless there is a valid public law ground.  The Board was entitled to make the findings as it did and the judge was right to find no valid public law ground to intervene.

15.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

16.  For the above reasons, this appeal is dismissed.