NGUYEN THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 107/2023, [2024] HKCA 353

On Appeal From [2023] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2023

(ON APPEAL FROM HCAL NO 1455 OF 2022)

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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 K W Lung (“Judge”) on 30 March 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 18 November 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 8 October 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1982.  She claimed to have previously entered Hong Kong illegally on 24 September 2017 and was arrested by the police on 16 January 2019.  She was subsequently repatriated to Vietnam on 11 February 2019.  The applicant claimed to have entered Hong Kong illegally again in September 2020 and was arrested by the police on 16 December 2020.  She submitted written significations indicating her intention to lodge a non-refoulement claim on 5 May and 16 June 2021 and her formal non-refoulement claim form on 29 July 2021.  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 a loan to him.  The factual background of the applicant’s claim was set out at [8] to [12] of the Board’s decision.

3.  By notice of decision dated 8 October 2021, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  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.  An oral hearing was held on 8 November 2022, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant submitted that she did not remember various details about her alleged clothing business, about her alleged loan from the creditor, and about her previous incidents with the creditor.  The Board found that the applicant’s evidence lacked particulars and objective information in support.  It further found that her evidence previously submitted in writing was inconsistent with her oral evidence and it did not accept that the inconsistency was due to problems with her memory.  The Board rejected her evidence and her claims.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Vietnam.  As the Board rejected her claims, there was no other evidence in support of her alleged claims of harm.  The Board nonetheless considered the risk of harm faced by the applicant on the assumption that her evidence was accepted.  It found there was in fact no real risk of harm if the applicant returned to Vietnam, because the past incidents showed only low severity of harm, the creditor had opportunities to cause her serious harm or kill her but he did not, and the dispute was of a private nature not involving state players.  According to the country of origin information, the Board further found that state protection and internal relocation within Vietnam was available to the applicant.

5.  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 18 November 2022, 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

6.  On 9 December 2022, 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 stated that she was applying for judicial review for the decision in relation to her “subsequent claim” and annexed the Board’s decision and its corresponding cover letter.  The Judge considered that the applicant’s application was for non-refoulement protection and not a “subsequent claim”.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 30 March 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact finding power vested in the Director and the Board.  In her affirmation, the applicant did not allege any error of law or procedural unfairness in the decisions of the Board or the Director.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that she has any realistic prospect of success in the proposed judicial review.

Appeal to this Court

8.  On 11 April 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that she would be beaten or even killed by her creditor or gangsters if she returned to Vietnam and that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam. 

9.  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.

10.  The applicant has not lodged any written submissions.

Discussion

11.  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.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it entirely rejected the applicant’s claims about her alleged business and alleged loan.  Even on the assumption that the Board accepted the applicant’s claims, it found that the facts alleged did not show the applicant would be subject to risks of the requisite level of harm, and that in any event state protection and internal relocation was available to her.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

13.  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 reviewable error in the Judge’s decision.    

14.  The applicant’s appeal is accordingly dismissed.

[1]  [2023] HKCFI 825.

[2]  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).

[3]  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.

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

[5]  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).