RE DINH THI NHUNG

CACV 161/2024, [2024] HKCA 720

On Appeal From [2024] HKCFI 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2024

(ON APPEAL FROM HCAL NO 233 OF 2024)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 19 April 2024 ([2024] HKCFI 992) (“the Leave Decision”) refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 5 January 2024 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 June 2017.

2.  On 26 April 2024, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 24 April 2016 and surrendered to the Immigration Department on 26 April 2016 when she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam, she would be harmed or killed by her creditor over her unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [1] ‑ [5] of the Leave Decision.

4.  By a Notice of Decision dated 14 June 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  By the decision dated 5 January 2024, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor over her outstanding debts that caused her to leave her country to come to Hong Kong to seek protection, that found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts which was in any event a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 29 January 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  Her intended grounds of challenge were summarised by the Judge at [10] of the Leave Decision:

“(1) That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Adjudicator was procedurally improper and/or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions; and

(6)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and thus the decision was irrational.”

7.  The applicant attended an oral hearing before the Judge on 26 March 2024 and a Vietnamese interpreter was present to provide language assistance.  On 19 April 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“11. These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse to grant leave and therefore dismiss her leave application.”

THIS APPEAL

8.  In her Notice of Appeal filed on 26 April 2024, the applicant reiterated that her life would be seriously threatened as creditors and gangsters might harm or kill her.  She further claimed that she was not an active person and internal relocation would not be feasible.  She also claimed that the Immigration Department failed to consider her human rights under various legislations.  In her supporting affirmation dated 26 April 2024, she only vaguely stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.  However, she did not specify what that said ground was.

9.  Contrary to the directions of the Registrar of Civil Appeals dated 26 April 2024, the applicant did not lodge any written submissions.

DISCUSSION

10.  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 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’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 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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.

12.  In our view, her appeal is a non-starter.  She fails 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 Leave Decision.  All her allegations are vague, bare and general without any specific particulars or evidence in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of her allegations are proper grounds of appeal.  Her appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.