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

CACV 93/2021

[2021] HKCA 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 93 OF 2021

(ON APPEAL FROM HCAL NO 1244 OF 2018)

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DECISION

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung on 2 March 2021, refusing the Applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  dated 19 June 2018.  By the Board’s decision, the Applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 6 April 2017 refusing her claim of non-refoulement protection was rejected.

2.  By written confirmation dated 11 March 2021, the Applicant consented to the disposal of this appeal on paper without oral hearing.  She lodged her written submission on 6 May 2021.

BACKGROUND

3.  The Applicant is a national of Vietnam.  She came to Hong Kong illegally and later surrendered to the Immigration Department and lodged a non-refoulement claim on 26 May 2015.

4.  As summarised by the Judge in the CALL-1 form ([2021] HKCFI 491)  at [5], the Applicant claimed that she borrowed a loan for her business in 2012.  The business failed and she was unable to repay even interest on the loan.  The money-lender came to her house for repayment from time to time, but she was not injured.  She subsequently decided to leave for Hong Kong.  She claimed that, if refouled, she would be harmed or killed by her creditor.

THE DIRECTOR’S DECISIONS

5.  By a Notice of Decision dated 6 April 2017, the Director rejected the Applicant’s non-refoulement claim for the reason that the level of risk of harm she would face was assessed to be low, and that both state protection and internal relocation would be available to her.  The Director’s decision covered torture risk, BOR 2 risk, BOR 3 risk and persecution risk.

THE BOARD’S DECISION

6.  The Applicant appealed to the Board and attended a hearing on 14 March 2018.  By a decision dated 19 June 2018, the Board rejected her appeal and affirmed the Director’s decision on all applicable grounds.  The Board found that the Applicant had not proved the loan or the threats allegedly made to her, as there were inconsistencies and implausibility in her evidence.  The Board also found that state protection and internal relocation were available.

THE JUDGE’S DECISION

7.  The Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s decision on 3 July 2018.  In the supporting affirmation, she stated that, if she were to return to her country, she would be inflicted with more harm.  The Applicant did not request for an oral hearing and the judge considered the application on the papers.

8.  The Judge observed that the Board’s decision should be examined with rigourous examination and anxious scrutiny.  He referred to Re Kartini [2019] HKCA 1022, where the Court of Appeal held that assessment of the evidence, Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are primarily matters within the province of the Board; and 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.[1]

9.  The Judge went on to state at [14] to [16] of the Call-1 form:-

“14. The applicant’s ground in support of her application is her opinion without any evidence or specifics. It does not assist her application.

15. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.   The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

THE APPEAL

10.  On 22 February 2021, the Applicant filed a Notice of Appeal in person, advancing the following ground of appeal:-

“… the gravity of my circumstances have [not] been weighed or realized by both [the Director and the Board] while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

11.  In her written submissions lodged on 11 May 2021, the applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, she made reference to what the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such reference.

DISCUSSION

12.  The Judge correctly applied the well-settled principle that assessment of the evidence, Country of Origin Information materials, risk of harm, state protection and viability of internal relocation, are matters within the province of the Board; and that the court will not interfere with the Board’s findings unless there are errors of law or procedural unfairness or irrationality in the Board’s decision.  Having reviewed the materials available before him, the Judge found no such errors or irrationality.  He held that there was no reasonable prospect of success to challenge the Board’s decision.

13.  The ground of appeal advanced by the Applicant is effectively an invitation to this Court to reassess the Applicant’s claim afresh.  It is not the role of this Court to do so.  In an appeal to this Court, it is necessary to identify errors made by the Judge.  The Applicant has not identified any specific error of law or procedure on the part of the Judge.  As for the reference to the late filing of a notice of appeal in her written submission, we do not see the relevance of this to the present appeal. No error by the Judge having been identified, the appeal is dismissed.