RE DAO THI NGOAN

CACV 405/2023, [2024] HKCA 367

On Appeal From [2023] HKCFI 2961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 405 OF 2023

(ON APPEAL FROM HCAL NO. 1163 OF 2019)

____________________

____________________

____________________

JUDGMENT

____________________

Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 1 December 2023 in which he refused to grant leave to her to apply for judicial review.

2.)  Background

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally from the Mainland on 30 March 2017.  She made a non-refoulement claim by written representation on 5 April 2017^[1].

3.  The basis of the applicant’s claim is that she would be harmed or killed by a creditor CUC for non-repayment of a loan taken out^[2].

4.  The applicant was born in October 1981 in Vietnam.  She has a son and a daughter born out of wedlock.  She lived and worked as a farmer raising pigs.  In April 2016 she wished to start a business raising pigs and borrowed money from CUC who is a renowned lender.  The applicant later learned that CUC has triad background.  There was no fixed time for repayment but there was interest charged.  A swine flu broke out in July 2016.  All her livestock were killed.  CUC sent men armed with poles to the applicant’s home and attacked the applicant but they did not use the poles.  The applicant recovered in a week.  On another occasion, a man came to the applicant’s home and threatened to harm her son for not repaying the loan but no one was harmed.  In late August 2016, the applicant with her children moved to her sister’s home which was 70 km away from her home.  Nothing seemed to have happened there except with the applicant learning from her brother that CUC was still looking for her^[3].

5.  The background facts have been summarized in the decision of the Judge at [5].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 24 November 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution^[4] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 19 February 2019, the Board dismissed the applicant’s appeal on 29 April 2019 (‘the Board’s Decision’).

8.  The Board found that although CUC’s men visited the applicant twice in July and in August 2016 respectively and on both occasions arming themselves with poles, they never assaulted the applicant with poles.  The weapons were only for intimidation.  The Board found that this means CUC never intended to inflict serious bodily harm on the applicant.  Despite the applicant being physically attacked, she was able to recover in a week without medical attention and this could not attain any degree of severity.  In the second visit, the applicant was only threatened and not assaulted.  The two incidents suggested that CUC was restrained and the visits were only to intimidate and not to inflict serious bodily harm.  The argument that CUC could find the applicant anywhere in Vietnam could not be sustained as the objective facts show that the applicant lived with her sister elsewhere and was not found by CUC for seven months.  CUC had also not found the applicant’s children over two years.  The applicant’s fear in this regard was unreal.  The applicant’s claims failed on all applicable grounds^[5].

5)  Decision of the Judge

9.  The applicant filed her Form 86 and affirmation containing five grounds for judicial review.  The five grounds were in gist: (1) The adjudicator of the Board had not been to Vietnam and did not know the real situation.  The Vietnam creditors are horrendous; (2) The Board held that state protection was available but the state is corrupt; (3) The Board held relocation was possible.  However, relocation depends on the commune registry’s approval and its approval requires bribery; (4) The adjudicator made a miscalculation of the loan in his decision; (5) The Board relies on country of origin to say that Vietnam’s corruption problem is improving but the applicant had provided country of origin information that the corruption problem still exists^[6].

10.  The Judge held that for ground (1), it was the applicant’s personal opinion without evidence in support; for ground (2), the Board had acknowledged that Vietnam has corruption problem but it also found from the Country of Origin Information that the position is improving and state protection is available; for ground (3), no evidence was before the Board regarding the commune registry.  The burden was on the applicant to establish her claim; for ground (4), the calculation error did not affect other findings of the Board such as state protection or internal relocation; for ground (5), it was the applicant’s personal opinion.  The Board had to balance different country of origin information to make its own finding^[7].

11.  The Judge held that there was no error of law or procedural unfairness in the Board’s decision.  The finding was not Wednesbury unreasonable or irrational.

6)  Grounds of appeal

12.  The applicant in the notice of appeal stated the following :

‘ And further take notice that the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case.’

13.  The applicant in her affirmation stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review but did not further elaborate.

14.  The applicant in her written submission stated the following in brief :

(1)  That the basis for her claim was that she would be harmed or killed by her creditors;

(2)  She applied for non-refoulement before the Director and was rejected.  The same result happened before the Board.  The Court also rejected her claim;

(3)  She could find the Board’s error but the Court could not; and

(4)  She asks the Court of Appeal to grant her claim.

15.  The applicant submitted to us orally that she has not seen her children in Vietnam for seven years.  She did not want to return to Vietnam for fear that her financial problem may affect them.  She claimed that they had seen her being beaten and harassed by the creditor.  She asked to be allowed to stay for a few more years in Hong Kong so that when her children grow up, they may earn money and help her to repay the loan.

7)  Our view

16.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

17.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

18.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.