VU VAN BINH v. TORTURE CLAIMS APPEAL BOARD

CACV 54/2023, [2023] HKCA 826

On appeal from [2023] HKCFI 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2023

(ON APPEAL FROM HCAL NO 1323 OF 2022)

________________________

________________________

________________

J U D G M E N T

________________

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

1.  On 17 February 2023, Deputy High Court Judge Bruno Chan refused to grant to the applicant an extension of time to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim and dismissed the leave application[1]. The applicant lodged a Notice of Appeal against the judge’s decision on 23 February 2023. The applicant has consented to the disposal of this appeal on paper by the Court of Appeal.

2.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 21 January 2020 and surrendered to the Immigration Department on 30 March 2020. He lodged his non-refoulement claim on 27 April 2020 on the basis that he will be harmed or killed by his creditor if he returns to Vietnam.

The Director’s decision

3.  By a Notice of Decision dated 5 January 2021, 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.  Taking into account that the creditor and his men had only made verbal threats but had never physically harmed the applicant and/or his family, the Director assessed that the future risk of harm is low. Besides, the applicant was not approached by his creditor when he stayed in his friend’s places in Vietnam. This shows that the perceived risk, if any, is restricted to the applicant’s home area. The Director considered that the availability of state protection and internal relocation alternatives can lower or negate the perceived risk. The Director further held that the applicant’s problem is a private dispute without any evidence of the involvement of Vietnamese government officials.

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 20 April 2021. The Board considered that the applicant’s creditor only intended to force the applicant to repay the loan but did not intend to seriously harm or kill him. At the hearing, the applicant also agreed that the creditor did not really intend to harm or kill him. The Board found that the acts complained of do not fall within the definition of torture. There is also no evidence to show that the creditor acted in the capacity of a government official or is in any way related to the Vietnamese government. The Board further considered that reasonable state protection will be available to the applicant in Vietnam. The Board concluded that the applicant failed to substantiate his non-refoulement claim and rejected the appeal on 19 November 2021.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 23 November 2022 to seek leave to apply for judicial review against the decision of the Board. He only stated that he cannot return to Vietnam because he will face the risk of being killed or tortured, without putting forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

7.  DHCJ Bruno Chan considered the leave application on paper. The judge was of the view that the applicant’s delay of nearly a year in making the application is very substantial and the applicant did not provide any explanation for the delay. Besides, the applicant failed to give any proper ground for his intended challenge. The judge considered there is no good reason for the serious delay and no prospect of success in the intended judicial review. Hence, the judge refused to grant an extension of time and dismissed the leave application on 17 February 2023.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 23 February 2023:

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

(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, it is quite possible for the creditor and gangsters to find out the applicant’s new residence.

Legal Principles

9.  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.

10.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

11.  The applicant had conceded at the hearing before the Board that his creditor did not have an intention to harm or kill him and the applicant’s assertion that he will be harmed or killed by the creditor and the gangsters is not supported by any evidence.

12.  The rest of the grounds were not raised in his application before the Court of First Instance. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[6]. In any event, these grounds are just bare assertions without evidence in support.

13.  The judge’s decision in refusing to grant extension of time and dismissing the leave application is well justified. The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  We therefore dismiss the appeal as it is devoid of merit.