NGUYEN THI THU v. TORTURE CLAIMS APPEAL BOARD

CACV 22/2024, [2024] HKCA 362

On Appeal From [2024] HKCFI 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 22 OF 2024

(ON APPEAL FROM HCAL NO 1561 OF 2019)

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J U D G M E N T

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Hon Chow 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 11 January 2024 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 23 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 June 2018.

BACKGROUND

2.  The Applicant is a national of Vietnam. She arrived in Hong Kong on 13 March 2011 as a visitor with permission to remain up to 22 March 2011. She did not leave Hong Kong after the expiry of her limit of stay, and overstayed illegally. She was arrested by the police more than 3 years later on 1 September 2015. After she had been referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that, if she returned to Vietnam, she would be harmed or killed by her creditor over an unpaid debt. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.  By a Notice of Decision dated 20 June 2018 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 23 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §8 of the CALL-1 Form:

“In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor that caused her to leave her country for Hong Kong, but 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 loan, and that in any event such risk if real arose from a private monetary dispute between her and her creditor 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 for her to move safely to other part 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

5.  On 10 June 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86 or in her supporting affirmation of the same date.

6.  The Judge determined the application for leave to apply for judicial review on paper without an oral hearing. On 11 January 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[9] On 10 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. 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.

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[11] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision 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.

[12] 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.”

THIS APPEAL

7.  In her Notice of Appeal dated 18 January 2024, the Applicant repeats her claim that her life will be seriously threatened, and she will probably die, if she returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. She disagrees with the Director’s assessment that she can move to another location in Vietnam to avoid her creditor for various reasons, and alleges that the Immigration Department failed to consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  By a written confirmation dated 18 January 2024, the Applicant consented to her appeal being disposed of on paper by the Court without an oral hearing.

9.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 18 January 2024.

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 v Director of Immigration [2018] HKCA 524 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.  The Applicant has failed 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 Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.  The Applicant’s appeal against the Order has no merit and is dismissed.