RE NGUYEN VAN THANG

CACV 161/2023, [2024] HKCA 557

On Appeal From [2023] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2023

(ON APPEAL FROM HCAL NO 137 OF 2023)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 17 May 2023 ([2023] HKCFI 1290) (“the Leave Decision”) refusing to grant him leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 3 January 2023, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 September 2021.

2.  On 29 May 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  He was arrested on 7 September 2020 for illegally remaining in Hong Kong.  He claimed he sneaked into Hong Kong via Mainland China on 24 June 2020.  He raised his non-refoulement claim on 3 October 2020 on the basis that he would be killed by his creditor surnamed Hung and his underlings because he was unable to pay his debt.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [10] of the Leave Decision.

4.  By a Notice of Decision dated 27 September 2021 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 3 January 2023, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [11] ‑ [14] of the Leave Decision:

“11. The Applicant testified before the Board. His evidence is inconsistent with the evidence he gave in his NCF in many respects and at odds with publicly available information. In his NCF, he said that the loan was taken out in August 2018. But he told the Board that he was forced to borrow because his business was affected by the onset of COVID-19 pandemic in July or August 2019. However, the available information indicated that the first COVID-19 pandemic wave in Vietnam commenced in January 2020. His explanation that he could not remember clearly was rejected by the Board.

12. He gave inconsistent details about the terms of the loan, in particular when it was to be repaid. He also told the Board that he was given a copy of the borrowing note, but previously, he said in his NCF that he had not been provided with such copy.

13. His evidence about the ill-treatment was inconsistent. In his NCF, he said he was not beaten on the first occasion when Hung visited his home, but he told the Board that he was beaten for an hour. He also told the Board about a second beating which is inconsistent with the only beating he described in his NCF. He told the Board he was beaten with bare hands for 30 minutes and suffered light wounds. In his NCF, he said he was beaten with iron rods for two minutes so that he was knocked unconscious and had to be hospitalised for ten days.

14. The Board found a vast gulf of difference between the Applicant’s evidence before the Board and his NCF which were not satisfactorily addressed by the Applicant and which led the Board to conclude that the centrepiece of his claim is largely concocted and false. Hence, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection and dismissed his appeal.”

THE JUDGE’S DECISION

6.  On 1 February 2023, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of intended review was given by the applicant in his Form 86.  In his supporting affirmation, he merely stated that he disagreed with the Board’s Decision and that his life would be under threat if refouled.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 17 May 2023, the Judge gave his decision refusing to grant the applicant leave to apply for judicial review, for the following reasons:

“17. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant’s evidence incredible and his case concocted. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the application for leave to apply for judicial review is refused.”

THIS APPEAL

8.  In his Notice of Appeal filed on 29 May 2023, the applicant reiterated that his life would be seriously threatened as creditors and gangsters might harm or kill him.  He further claimed that as he was not an active person, internal relocation would not be feasible.  He also claimed that the Immigration Department failed to consider his human rights under various legislations.  In his supporting affirmation dated 29 May 2023, he only vaguely stated he understood that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review. However, he did not specify what that said ground was.

9.  Contrary to the directions of the Registrar of Civil Appeals dated 29 May 2023, the applicant did not lodge any written submissions.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, his appeal has no substance.  The applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  All his allegations are vague, bare and general without any specific particulars or evidence in support.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.