MANH THI MAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 152 /2024, [2024] HKCA 1076

On appeal from [2024] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2024

(ON APPEAL FROM HCAL NO 1296 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 11 April 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 19 April 2024.

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 13 December 2015 and was arrested by the police on 21 December 2015.  She lodged her non-refoulement claim on 24 December 2015 on the basis that, if refouled, she would be harmed or killed by her creditor and his men.

The decision of the Director

3.  By a Notice of Decision dated 15 June 2017, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The Director assessed that the level of risk of harm upon the applicant’s return to her home country is low as the creditor and his men had only made verbal threats without using any violence towards the applicant or her family members.  The Director considered that the mental and physical suffering of the applicant has not attained the requisite minimum level of severity.  The Director found that the applicant’s problem is related to private dispute which does not involve the interest of the Vietnamese government.  The Director further held that state protection and internal relocation options are available to the applicant in Vietnam which further lower or negate any perceived risk.  

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 26 March 2019[6]. The Board considered the applicant’s evidence concerning the core issues is not credible because of the significant inconsistencies in her evidence.  The Board also held that the alleged harm has not attained the requisite minimum level of severity even if her evidence were to be accepted.  The Board further found that the applicant’s dispute with her creditor is private in nature and there is no evidence to show that her problem involves any state acquiescence.  The Board also held that the applicant does not have sufficient evidence to show that she would not receive reasonable state protection in Vietnam and internal relocation in Vietnam is not unduly harsh for her.  Thus, the Board dismissed the appeal on 10 May 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 15 May 2019 to seek leave to apply for judicial review against the decision of the Board.  She reiterated that she would face genuine and substantial risk of being subject to torture or killed by her creditor and his men in her supporting affirmation, without putting forward any specific ground for her intended challenge against the Board.

The judge’s decision

7.  DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing.  The judge found that the applicant has no valid reason to challenge the Board’s decision and the Board is entitled to come to its conclusion.  As the applicant did not have any realistic prospect of success in her proposed judicial review, the judge refused the leave application on 11 April 2024.

Grounds of appeal

8.  The applicant stated her grounds of appeal in the Notice of Appeal which may be summarised as follows:

(1)  If she returns to Vietnam, her life will be seriously threatened or she will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)  The Director and the Board “did not see the grounds” to reserve their decisions.

Analysis and disposition

9.  The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing.

Legal principles

10.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  The applicant’s grounds are just bare assertions without evidence in support.  She does not have any evidence to refute the Board’s findings and failed to identify any error in the judge’s decision.  It has not been demonstrated that judge had made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong.

14.  The applicant’s grounds of appeal are devoid of merit, we therefore dismiss the appeal accordingly.