PHUNG THI HUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 381 /2023, [2024] HKCA 605

On Appeal From [2023] HKCFI 2972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 381 OF 2023

(ON APPEAL FROM HCAL NO 1549 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 16 November 2023[1] refusing 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 (“Board”)  dated 27 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 3 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1974.  She claimed to have entered Hong Kong illegally via Mainland China on 10 July 2016.  The applicant was arrested by the police on 17 July 2016 and submitted written significations indicating her intention to lodge a non-refoulement claim in Hong Kong on 25 July 2016 and 15 August 2016 respectively.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her inability to repay the loan.  The factual background of the applicant’s claim was set out at [23] to [50] of the Board’s decision.

3.  By notice of decision dated 3 November 2017, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  The Board found it appropriate to determine the case by paper disposal without an oral hearing.  It assessed the applicant’s claim based on the events as alleged by her.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Vietnam.  It found there was in fact no real risk of harm if the applicant returned to Vietnam, because her alleged physical or mental injuries did not reach the minimum requisite level of harm, the intention of the creditor was to force her to repay the loan, the creditor and his gangsters did not harm her family members, and her dispute was of a private nature without state involvement.  Having regard to the country of origin information, there was no evidence to show that the authorities would not provide protection for the applicant as alleged.  Furthermore, the Board found that internal relocation to large cities to avoid any remaining risk of harm was plausible for the applicant as an able-bodied adult with more than 10 years of education and many years of work experience.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 27 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 6 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply repeated the basis of her claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant had not requested an oral hearing.  On 16 November 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [17] to [19] of the Form CALL-1 as follows:

“ 17. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

18. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she repeated the gist of her case and her fear to return to Vietnam and annexed a copy of the Decision. In her submission, she highlighted some of her evidence and reiterated her fear. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Vietnam. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on the basis of those facts that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed question of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

Appeal to this Court

9.  On 22 November 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that her family members’ situations were dire, that she would be beaten or even killed by her creditor and gangsters if she returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, and that the Director failed to consider her human rights.  More specifically, the applicant stated that her husband was chased by his creditor and gangsters and was still missing at present, her son was injured by the creditor and had to flee, and her daughter had to stay with relatives as the creditor foreclosed her house.  She did not provide any further details or documentary proof.  In the applicant’s affirmation filed on the same date, she stated that there was a good ground of appeal that was no necessarily considered at the stage of applying for leave for judicial review, but did not specify what that ground was.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has not lodged any written submissions. 

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found the applicant’s alleged harm did not reach the requisite level of risk, this was a private dispute without involvement of the state, and internal relocation and police protection were viable options.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  The applicant claims that her husband was chased by his creditor in 2015 and her son was injured by the creditor and his gangsters and they were still fleeing.  This is a new ground that does not appear to have been properly raised (save for the assertion in the Notice of Appeal)  or considered in the court below.  It remains only an assertion in the notice of appeal, without any evidence in support.  She did not provide any particulars of when and how her son was injured by the creditor or when and how she came to know of this incident.  She said her husband was chased by his creditors in 2015 and had to flee but there is no explanation why this was not raised by her before.  In light of the lack of essential particulars, we are of the view that there are no special circumstances that should incline this Court to consider these assertions which have not been raised before the Board or the judge below.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.