HOANG NGOC ANH v. TORTURE CLAIMS APPEAL BOARD

CACV 173/2022, [2023] HKCA 680

On Appeal From [2022] HKCFI 1134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2022

(ON APPEAL FROM HCAL NO 395 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 Bruno Chan (“Judge”) on 21 April 2022[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 20 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 14 July 2017 rejecting the applicant’s non-refoulement claim. 

Background

2.  The applicant is a Vietnamese national born in 1963, of mixed Chinese and Vietnamese parentage[2].  She admitted having entered Hong Kong illegally on 28 May 2015, and surrendered herself to the Immigration Department on 11 June 2015, raising a non-refoulement claim the same day.  Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by her creditor due to her inability to repay a loan.  The factual background was set out at [16] to [32] of the Board’s decision.

3.  By notice of decision dated 14 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 11 January 2019, during which the applicant answered questions from the Board.  The Board found that on the applicant’s narrative, she had not suffered any severe pain or suffering or any serious injury.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  Therefore, in its written decision issued on 20 May 2019, the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

5.  On 12 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision, which had not yet been issued at that time – the date given for the Board decision in her Form 86, was in fact the Board hearing date.  In her supporting affirmation, her stated ground for judicial review was that if she were to return to Vietnam, she would be killed.

6.  Following consideration of the documents only, on 21 April 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] – [14] of the Form CALL-1 as follows:

“ 9. In its decision the Board accepted the Applicant’s claim of fear of threats from her creditor over her outstanding debts, but found that it was a private monetary dispute between them without any official involvement that state/police protection would be available to her upon her return to Vietnam as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10. However, even before the Board delivered its decision, the Applicant already 3 months earlier on 12 February 2019 filed her Form 86 for leave to apply for judicial review of the Board’s decision which she dated 11 January 2019 which was the same day as noted above that she attended her appeal hearing before the Board, and perhaps naturally no ground for seeking relief was then given in her Form, while in her supporting affirmation of the same date she just repeated her claim of fear of harm from her creditor as before, but notwithstanding after the Board had subsequently handed down its decision and an invitation from the Court for her to put forward her written submissions for her application, the Applicant failed to do so or put forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 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. In the premises and 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.”

Appeal to this Court

7.  On 29 April 2022, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, she reiterated the factual basis of her claim, but did not identify any specific grounds of appeal or any particular errors said to have been committed by the Judge or the Board. 

8.  On the same day that she filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

9.  The Registrar of Civil Appeals directed on 29 April 2022 that the applicant must lodge her written submissions on appeal by 13 May 2022, failing which she would be deemed to have abandoned her right to rely on written submissions, and the appeal would be referred to the Court of Appeal for consideration based on the available documents and materials.

10.  The applicant has failed to lodge any submissions as directed.  This appeal is accordingly determined on the basis of the available materials.

Legal principles

11.  In assessing the merit 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.

Discussion

12.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

13.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to the Board’s finding that on the applicant’s narrative, she had not suffered any severe pain or suffering or serious injury.  On that basis the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  These findings are within the province of the Board.  The court cannot interfere with them unless they are vitiated on public law grounds.  The applicant has failed to establish any such grounds.

14.  Having considered the materials before us, we are of the view that the Judge’s refusal of leave to apply for judicial review is free of error.  There is no viable ground to challenge his decision.

15.  For these reasons, the applicant’s appeal is dismissed.

[1]   [2022] HKCFI 1134

[2]   According to her non-refoulement claim form

[3]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]   This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[6]   This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).