MAI VAN NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 8/2023, [2023] HKCA 626

On Appeal From [2023] HKCFI 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 8 OF 2023

(ON APPEAL FROM HCAL NO 2556 OF 2018)

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JUDGMENT

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

1.  On 11 January 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 6 January 2023 (“the Order”)refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 1 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 May 2017 rejecting his non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of Vietnam.  On 5 December 2014, he entered Hong Kong illegally.  On 8 December 2014, he surrendered himself to the Immigration Department.  On the same day, he filed a claim for non-refoulement protection on the basis that if he was refouled, he would be injured or even killed by his creditor Hoang Van Hieu because he could not pay his debt.  Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2023] HKCFI 41).

3.  By a Notice of Decision dated 10 May 2017, 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 1 November 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“首先，上訴委員會認爲根據申請人的供詞，他所遭受的傷害，無論是精神上還是肉體上的，均未達到最低嚴苛程度 (見：第19段至第20段)。其次，申請人與債主之間的問題僅是私人債務糾紛，沒有證據顯示，此事件與越南政府或官員有關 (見：第21段)。再者，上訴委員會考慮了客觀的原居國資訊，裁定申請人若是被遣返可獲得國家的合理保護 (見：第22段至第33段)。最後，上訴委員會裁定申請人可以在越南其他城市生活以逃避聲稱可能受債主迫害的風險 (見：第46段至第49段)。”

THE JUDGE’S DECISION

5.  On 14 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he stated that if he was refouled back to his home country, his life would be in danger, and he would face a genuine and substantial risk of being subjected to torture or even death since he was unable to repay his debt.

6.  On 6 January 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] 申請人在誓章裡未能提出合理理由反對處長或上訴委員對事實的判決。

[16] 本席認爲上訴委員的決定沒有法律誤判、程序不公或是有違常理。

[17] 因此，本席認爲沒有任何證據顯示，申請人建議對上訴委員會的決定作出司法覆核，有任何合理的成功機會。”

THIS APPEAL

7.  In his Notice of Appeal filed on 11 January 2023, the Applicant stated that if he returned to Vietnam, his life would be seriously threatened.  He also disagreed with the Director’s finding that he could move to live in another location in Vietnam.  In his affirmation filed on the same date, the Applicant stated that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but failed to identify what such ground might be.  Also on 11 January 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

8.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 11 January 2023.

DISCUSSION

9.  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 of Appeal’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)).

10.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judge’s decision of 6 January 2023, and has failed to raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merits, and is dismissed.

13.  This judgment is written in English because the Applicant’s Notice of Appeal and supporting affirmation are both written in English.  If required, the Applicant may arrange with the Clerk to this Court for this judgment to be orally interpreted to him in the Court’s premises.