HOANG DINH CUONG v. TORTURE CLAIMS APPEAL BOARD

CACV 24/2024, [2024] HKCA 355

On Appeal From [2024] HKCFI 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2024

(ON APPEAL FROM HCAL NO 2976 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 January 2024 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 August 2017.

BACKGROUND

2.  The Applicant is a national of Vietnam. Previously, he repeatedly entered Hong Kong illegally and was invariably repatriated back to Vietnam. In November 2012, the Applicant again sneaked into Hong Kong illegally. He was arrested by the police on 23 November 2012 for which he was convicted and sentenced to prison for 18 months. Upon his discharge from prison, he was referred to the Immigration Department for deportation. He then raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be arrested and sent to a drugs rehabilitation center to receive forced treatments due to his past drug abuses, and would be ill-treated and tortured. He also alleged that he would be harmed or killed by his friend’s creditor over their monetary dispute. Details of the Applicant’s claim were summarised by the Judge at §§1-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 29 August 2017 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 12 September 2019, 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 §13 of the CALL-1 Form:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from the police or his creditor that caused him to leave his country to come to Hong Kong to seek for protection, that there is no reason for him to have any fear of the police or of being sent back to drug-rehabilitation center given his admission of no further drugs abuse since June 2012 and that he no longer has such concern, nor is there any evidence of any real intention of his friend’s creditor to seriously harm or kill him in what was just a monetary dispute between his friend and his creditor which has nothing to do with the Applicant and without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam if needed as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 10 October 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In the supporting affirmation of the same date, the Applicant merely produced a copy of the Board’s Decision.

6.  The Judge held a hearing of the leave application on 12 December 2023. On 5 January 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[16] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 57 – 60 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

[17] Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm from his friend’s creditor in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[18] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

7.  Attached to the Applicant’s Notice of Appeal filed on 18 January 2024 is a 4-page document titled “Written Submissions of Reasonable Grounds to Continue Proceedings”. In that document, the Applicant states that he does not agree with the decisions made by the Director and the Board, and believes that his case was not determined fairly. He also complains that he does not have legal advice or language assistance to continue “the legal proceeding of application for leave for apply of Judicial Review” [sic]. He says that after the screening interview, he has not received any further legal or language assistance, and the determination of his appeal/petition has never been read or translated to him in his first language.

8.  By a written confirmation dated 17 January 2024, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

9.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 18 January 2024.

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 v Director of Immigration [2018] HKCA 524 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.  Neither his disagreement with the decisions of the Director and/or the Board, nor his general complaint of unfairness without particulars, can constitute a valid ground of appeal.

13.  As for his complaint about the lack of legal and language assistance, the Court has repeatedly held that a non-refoulement claimant is not entitled to legal representation or language assistance at all stages of the proceedings. Further, at the hearing before the Judge, the Applicant was assisted by a Vietnamese interpreter.

14.  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 Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

15.  The Applicant’s appeal against the Order has no merit and is dismissed.