RE LE THI HANG

CACV 255/2021

[2021] HKCA 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2021

(ON APPEAL FROM HCAL NO 2775 OF 2018)

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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 To (“Judge”) on 7 May 2021[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 29 August 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 18 July 2016 and 1 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Vietnamese national. She claimed that she entered Hong Kong illegally on 30 December 2013. She lodged her non-refoulement claim on 16 March 2014. Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by her creditor for failing to repay her loan. The factual background of the claim was set out in detail at [4] to [14] of the Board’s decision.

3.  By two notices of decision dated 18 July 2016 and 1 August 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The former covered BOR 3 risk,[2] persecution risk,[3] torture risk,[4] while the latter covered BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 28 February 2018, during which the applicant answered questions from the Board. The Board found that the applicant’s claims of taking on a high-interest loan to start a seafood farming business were implausible, because she had no prior experience in that type of business, and when asked by the Board, could not even answer what type(s) of seafood were farmed. As a result, the Board found that all of the applicant’s evidence was not credible, and determined that her allegations of being pursued or harmed because of a debt were fabricated.

5.  Thus the Board concluded that there was no real risk of harm in the event of refoulement, but also found that in any event internal relocation was viable. The Board dismissed the applicant’s appeal on 29 August 2018 with respect to all the applicable grounds.

Decision of the court below

6.  On 5 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her affirmation filed in support, the applicant stated that her life was still in danger in her country, and reiterated some of background facts for her claim. She also stated that she met and married her current husband in Hong Kong and had (at that time) a five-month-old baby son born in Hong Kong; she requested to be allowed to stay in Hong Kong with her husband and son. However, she did not raise any specific grounds for judicial review.

7.  Following consideration of documents only (as the applicant did not request an oral hearing), on 7 May 2021 the Judge refused to grant leave for judicial review. The reasons for the refusal were set out at [15]-[16] of the Form CALL-1 as follows:

“ 15. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. The Applicant has not advanced any grounds in respect of these matters. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; correctly applied the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.

16. Accordingly, the Court concluded that there was nothing that show there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.”

Appeal to this Court

8.  On 18 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision. The Notice of Appeal essentially reiterated the matters stated in her supporting affirmation for her application for leave to apply for judicial review, ie the factual allegations for her claims. She did not specifically set out any grounds of appeal in terms of alleged errors in the Judge’s decision.

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

10.  The Registrar of Civil Appeals directed on 8 July 2021 that the applicant shall lodge her written submissions by 22 July 2021, failing which the appeal would be disposed of on the basis of the documents available. As the applicant has failed to lodge any submissions, we determine this appeal based on the available documents.

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 mentioned earlier, the applicant did not specify any valid grounds of appeal in her Notice of Appeal, and has not lodged any submissions.

13.  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 are no such grounds that point to any error by the Judge, the appeal should be dismissed.

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding as to her credibility. The Board determined that her allegations of being pursued or harmed due to a debt were fabricated, and concluded that there would be no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable in any event. These findings open to the Board to make on the evidence. The court will not interfere with such assessments unless they are vitiated on public law grounds, but as the Judge pointed out, there were no such grounds.

15.  The fact that the applicant wishes to remain in Hong Kong in order to be with her husband and Hong Kong-born son is not in itself a valid ground for judicial review or a valid ground of appeal. It is for the applicant and her husband to consider what application they can make to the relevant authorities for permanent resident status or a dependant visa for their son or for herself. Such recourse, however, does not affect the validity of the Board’s decision or the Judge’s refusal of leave for judicial review.

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

17.  For these reasons, the appeal is dismissed.