LE CHI DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 353/2023, [2024] HKCA 532

On Appeal From [2023] HKCFI 2787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2023

(ON APPEAL FROM HCAL NO 1201 OF 2023)

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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 26 October 2023[1] dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 May 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 9 December 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1993.  He claimed to have last entered Hong Kong illegally on 18 April 2021 and was subsequently arrested by the police for illegal entry on 21 April 2021.  He submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on 7 May 2021.  His claim for non-refoulement protection dated 29 October 2021 was received by the Immigration Department on 2 November 2021.  The applicant’s claim was made on the basis that if he returned to Vietnam, his creditor (Pham Van Truong) would harm or kill him due to his failure to repay a loan.  The factual background of the applicant’s claim was set out at [6.1] to [6.14] of the Director’s decision.

3.  By notice of decision dated 9 December 2021, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision on 22 December 2021.  By letter dated 26 May 2022, the applicant requested to withdraw his appeal/petition against the Director’s decision.  After consideration of the content of his letter, the Board was satisfied that the applicant’s request to withdraw his appeal was freely made and that he understood the consequences of the withdrawal. The Board was also satisfied that there was good reason for the withdrawal, namely that the applicant considered it safe for him to return to Vietnam.

5.  Therefore, on 27 May 2022, the Board acceded to the applicant’s request for withdrawal of his appeal and directed that the Director’s decision of 9 December 2021 remained.

The Judge’s decisions in the court below

6.  Notwithstanding his own withdrawal of the appeal, on 18 July 2023, long after the expiry of the 3-month time limit for judicial review prescribed in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), the applicant filed a Form 86 and sought leave from the Court of First Instance to apply for judicial review against the Director’s decision.  In his supporting affirmation, the applicant merely stated that he sought to apply for judicial review of the Director’s decision dated 9 December 2021 which he asserted to be “unfair and unreasonable”, and annexed the decisions of both the Director and the Board respectively.

7.  An oral hearing was held on 26 October 2023.  The Judge considered the application on the basis of the documents and the oral submissions of the applicant at the oral hearing. On the same date, the Judge issued his decision, dismissing the applicant’s application for leave to apply for judicial review.  The reasons were set out in [4] to [6] of the Form CALL-1 as follows:

“ 4. The Applicant is now seeking leave to judicially review the Director’s decision in the Notice. He explained that in April 2023 while he was in prison custody, he was informed by his family that his mother fell sick used up all the money to be used to pay his creditor; hence the creditor renewed the threat to kill him. Basically, he is repeating his case which had been considered by the Director.

5. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board: see Sections 37ZR to 37ZU of the Immigration Ordinance. The Applicant was aware of those procedures and invoked them, though he subsequently withdrew his appeal. The Director’s decision is not susceptible to judicial review: Re Moshsin Ali[1]. Even if what the Applicant said at this hearing is true, it does not give this Court jurisdiction to review the decision of the Director. The Applicant’s application for leave to apply for judicial review of the Director’s decision in the Notice is therefore dismissed.

6. As the matter now stands, the decision in the Notice remains valid.  On the other hand, the fourteen-day statutory time limit to appeal the Notice has long past by almost two years.  In view of the procedural background, there is no prospect that his late filing of another appeal will be entertained.”

Appeal to this Court

8.  On 9 November 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were as follows:

(1)  The Director, the Board and the Court had failed to take such argument into account or that the Director had failed to give sufficient weight to such argument before reaching its decision.  The reference to “such argument” is not identified or explained by the applicant;

(2)  The Board failed to make sufficient enquiry and stated that the applicant had failed to provide any credible evidence to prove material elements of his claim; and

(3)  The Director and the Board had failed to give weight to or realize the gravity of the applicant’s circumstances in considering the non-refoulement claim.  The applicant should be given an opportunity to plead his case.

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant has not lodged any written submissions. 

Discussion

11.  In assessing the merits 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 Director or 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.

12.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.

13.  In the present case, the applicant has not contested the validity of the withdrawal of his appeal and the Board’s acceptance of his withdrawal.  At the oral hearing on 26 October 2023 before the Judge, the applicant submitted that he was informed by his family members that his mother fell ill and used up all the money to be used to repay the creditor, so the creditor renewed the threat to kill him.  As pointed out by the Judge, the applicant was basically repeating his case which had already been considered by the Director.    

14.  The applicant has failed to raise any reasonably arguable ground for judicial review of the Director’s decision, quite apart from the fact that the proper avenue for challenging the Director’s decision was an appeal to the Board, which the applicant initiated but subsequently abandoned of his own motion.

15.  Nor has the applicant identified any viable ground of appeal against the Judge’s decision.

16.  For these reasons, the applicant’s appeal is dismissed.

[1]  [2023] HKCFI 2787.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).