RE NGUYEN MANH QUYEN

CACV 447/2022, [2023] HKCA 1122

On Appeal From [2022] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2022

(ON APPEAL FROM HCAL NO 2472 OF 2018)

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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 an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 1 November 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 3131).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 18 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 November 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 9 November 2022, the applicant indicated his 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

4.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 30 March 2015.  On 5 April 2015, he was arrested by the Hong Kong police for illegal remaining in Hong Kong and was referred to Castle Peak Immigration Centre on 6 April 2015.  By the written representation dated 11 April 2015, he raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By their decisions respectively dated 4 November 2016 and 18 October 2018, the Director and the Board dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.

6.  In particular, in dismissing his appeal against the Director’s Decision, the Board found that the applicant’s claim lacked credibility.  The Board found that the applicant’s failure to explain the inconsistencies in relation to the loan and the contradictory nature of his account of events undermined his credibility. The Board also casted doubt as to his ability to borrow the said sum and further noted that he was not harmed prior to his departure.  The Board further held that state protection and internal relocation were both available to the applicant.  Accordingly, the Board found that the applicant failed to substantiate on all applicable grounds.  The Board thus dismissed his appeal.

The Leave Decision

7.  On 6 November 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was given by the applicant in his Form 86.  In his supporting affirmation, he only asserted that he would be harmed or killed by his creditor or the creditor’s subordinates given his failure to repay the debt.  As the applicant did not request an oral hearing, the Deputy Judge considered and determined his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. His reasons were set out in detail at [13] ‑ [19] of the Leave Decision:

“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, §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. There is no valid reason 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.

CONCLUSION

19. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 9 November 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he stated that the gangsters and creditors disregarded the law and that he would be tortured, beaten or even killed.  He also claimed that it would be infeasible for him to internally relocate as he was not an active person and might be disadvantaged in the labour market.  He further claimed that it would be very dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 9 November 2022, the applicant failed to lodge any written submissions.

Discussion

11.  The relevant legal principles governing appeals in non‑refoulement cases are set out 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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13.  In our view, the applicant’s allegations have no substance.  It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision.  His complaints are also all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Leave Decision.  This appeal must fail on this alone.

14.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board as primary decision makers.  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: 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].

15.  For the reasons given above, the applicant’s appeal has no merit, and we dismiss it.