NGUYEN QUOC THIEN v. TORTURE CLAIMS APPEAL BOARD

CACV 253/2024, [2024] HKCA 1138

On Appeal From [2024] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 253 OF 2024

(ON APPEAL FROM HCAL NO 405 OF 2024)

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BETWEEN

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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 Bruno Chan (“Judge”) on 13 June 2024[1] refusing to extend time for the 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 September 2023 and dismissing the application for leave to apply for judicial review. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 19 January 2022 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1998. He claimed to have arrived in Hong Kong illegally from Mainland China on 24 June 2021 and he surrendered to the police on 26 July 2021. The applicant submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on 30 July 2021. His formal non-refoulement claim form dated 17 December 2021 was made on the basis that if he returned to Vietnam, his creditor (Tran Dai Nghia) would harm or kill him due to his inability to repay his loan. The factual background of the applicant’s claim was set out at [3] to [11] of the Board’s decision.

3.  By notice of decision dated 19 January 2022, 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. An oral hearing was held on 31 August 2023, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant submitted various claims inconsistent with his previous written statements in relation to, inter alia, the timing and operation of his business, the details of his loan, and how and when the creditor chased him. The Board had asked the applicant if it should rely on his oral evidence or his written statements in respect of the inconsistencies, but he stated that he could not confirm which version was correct. Overall, the Board did not find the applicant’s account to be credible or truthful and it did not accept that the applicant had been ill-treated as alleged.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam. It found there was in fact no real risk of harm if the applicant returned to Vietnam as it did not accept the applicant’s claims to be credible or truthful. In any event, the Board found that state protection was reasonably available to the applicant, if needed, and the issue of internal relocation would not arise.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam. By its written decision dated 27 September 2023, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 4 March 2024, over 2 months beyond the 3-month time limit for bringing judicial review proceedings as prescribed by Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. His grounds for judicial review were that the decisions of the Director and the Board were not reasonable or fair, that the Director failed to give proper weight to state acquiescence, that the Board acted unreasonably and procedurally unfairly by placing too much reliance on country of origin information instead of on the applicant’s personal background and experience, that the Board acted procedurally improperly and unfairly in assessing his explanations and in unreasonably requiring him to respond to questions he was not in a position to do so, that the Director failed to consider the corruption and incompetency of the administration of Vietnam, and that the Board made a ruling to dismiss the appeal when it ought to have allowed the appeal.

8.  In the accompanying affirmation, the applicant simply stated that the Board’s decision was unfair and unreasonable and annexed the Board’s decision.

9.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions at the oral hearing scheduled on 30 May 2024. On 13 June 2024, the Judge issued his decision, refusing to extend time for the application for leave to apply for judicial review and dismissed the application to apply for judicial review. The reasons were set out in [12] to [19] of the Form CALL-1 as follows:

“ 12. As the last day of the three-month period for him to file his form 86 fell on 27 December 2023, the Applicant was therefore more than 2 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than 2 months must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was arrested by police sometime in October 2022 for possession of a bullet and was subsequently put in Stanley Prison until early 2024 when by then he was already out of time with his intended application.

14. The record shows that the Board’s decision was sent on the same day of 27 September 2023 to the Applicant at Stanley Prison without being returned through undelivered post, and while it is accepted that there would be the inevitable delay with mails and inconvenience in accessing legal assistance while in prison or detention, I am not satisfied that they would amount to valid justification for such serious delay in the Applicant’s case.

15. As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and his creditor only without any official involvement or political element. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time accordingly dismiss his leave application.”

Appeal to this Court

10.  On 26 June 2024, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, reciting legal principles related to high standards of fairness and Wednesbury unreasonableness, the Board acted procedurally unfairly by not properly assessing the credibility of the applicant, and the Judge’s decision was totally unfair. The applicant also attached a 4-page document entitled “Submissions” stating that he would be killed by his enemy or the police, that the Director and the Board’s suggestion of internal relocation was completely unfeasible, and that the Director and the Board failed to consider his human rights. He further attached a 3-page document entitled “Affirmation”, but it was not sworn or affirmed formally. There, he stated the procedural history of his claim.

11.  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.

12.  The applicant had not lodged any written submissions on or before 10 July 2024 in accordance with the directions of the Registrar of Civil Appeals dated 26 June 2024. Subsequently, this Court received a letter written in Vietnamese from the applicant on 12 July 2024. The Court Language Section has since prepared a translation of the letter in English. In that letter, the applicant repeats the reason for his delay and repeats the basis of his non-refoulement claim. As he had informed the Judge, he stated that his delay was due to being detained and requiring to find a friend from outside to help him translate the document.

Discussion

13.  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 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.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claims were not credible or truthful. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director and the Board without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

15.  Leaving aside the absence of any good reason for the serious delay, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review in any event. Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.