KHUC THI MAI TRANG v. TORTURE CLAIMS APPEAL BOARD

CACV 137/2022

[2022] HKCA 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2022

(ON APPEAL FROM HCAL NO 393 OF 2019)

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J U D G M E N T

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

Introduction

1.  On 8 April 2022, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 27 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 11 October 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 13 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  In compliance with the directions of the Registrar of Civil Appeals given on 13 June 2022 and Practice Direction 4.1, the applicant lodged her skeleton argument on 8 July 2022. 

Background

4.  The Applicant is a national of Vietnam who entered Hong Kong illegally on 31 March 2017 and was arrested by police on the same day.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim alleging that if refouled, she would be harmed or killed by her creditor over outstanding debts.  The factual background of this case is succinctly summarized by the Judge in [2] to [4] of the Form CALL-1 ([2022] HKCFI 1005).

5.  By a Notice of Decision dated 11 October 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

6.  The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 8 and 23 October 2018 and by the decision dated 27 December 2018, the Board rejected the appeal/petition and confirmed the Director’s decision.  At [83] to [129], the Board found a number of important inconsistencies in her evidence (eg relating to the procedure for the sale of the family’s house, and her alleged ill-treatment and detention in the pig farm in China).  In any event, the applicant’s claim was a private problem without any state involvement.  Objective country of origin (“COI”)  information suggested that there is reasonable state protection [29] – [39].  Internal relocation is also a viable option [158].  For the aforesaid reasons, her non-refoulement claim failed on all applicable grounds. 

Decision of the court below

7.  On 12 February 2019, the applicant filed her Form 86 for leave to apply for judicial review of the decision of the Board.  She did not provide any ground for seeking relief in her Form 86 or in her supporting affirmation.

8.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 8 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [9] – [12] of the Form CALL-1 as follows:

“9. On 12 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10. 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.

11. 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 her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.”

Appeal to this Court

9.  On 13 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision.  In her Notice of Appeal, she stated:

“I’d like to the Supreme Court because now, my life still in danger. I’ve borrowed a lot of money from the Black (sic). Credit in Vietnam for a long time and now I haven’t got any money to pay back to them. So that I can’t come back to Vietnam. Meanwhile, I’m a single mother. In Vietnam, they’re very discriminating about this. If I appear in Vietnam, they will find and kill me and my son. I’m now very afraid of that. That’s threaten to my life and my son.”

10.  In her written submissions, she advanced the following grounds:

(1)  The Board thought that the creditor only wanted repayment, and failed to take into account the relevant matter that she had suffered mental suffering at the hands of the creditors.

(2)  The Board had failed to apply the high standard of fairness and the applicant should be given an opportunity to be heard orally or further in writing/making representations in relation to the Board’s finding that there is no state involvement in the creditors’ acts of debt collection before making its decision.

(3)  The Board had failed to exercise independent assessment by relying on the COI material and failed to evaluate the credibility and veracity of the COI material.

(4)  The Board’s decision was irrational as the applicant suffered severe mental suffering over the incidents.

(5)  The Board failed to take into account the undue hardship she would face in relocating to other parts of Vietnam.

Legal principles

11.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant failed in her Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision.

13.  The grounds of appeal set out in the applicant’s written submissions are all against the Board’s decision.  As the applicant did not put forward any ground for relief in her application for leave to apply for judicial review, they are new grounds and generally would not be entertained by this Court.  Further, as mentioned earlier, the role of the Court is not to provide a further avenue of appeal against the Board’s decision and this Court would not intervene unless there are valid public law grounds.  We found none in this case.

14.  In any event, the complaints against the Board’s decision are without merit.

15.  First, the applicant was provided with an oral hearing and interpretation service.  As shown in its decision, the Board had raised queries about the applicant’s case and she was given every opportunity to explain and clarify her case.[5] 

16.  Secondly, the Board rejected the applicant’s case for lack of credibility and found that she had fabricated her story that she had borrowed money and suffered harm and ill-treatment from the moneylenders.  The Board had explained in [96] to [104] of its decision why it did not believe the applicant’s story that she had sold the family house and borrowed money from the moneylenders to pay medical expenses for her late father.  The Board also found that her story about her illegal detention in a pig farm lacked logic and common sense ([105] – [119]).

17.  Thirdly, even though the applicant’s case was rejected on the issue of credibility, the Board, on the basis of the applicant’s evidence and the relevant COI, also found no state instigation or acquiescence and found that there is reasonable state protection.  

18.  Lastly, regarding her complaint that the Board had failed to consider the hardship she would face if she relocated to other parts of Vietnam, the Board found that her record showed that she had previously gone to different places in Vietnam, China and Hong Kong for economic reasons.  The Board thus found at [158] that internal relocation is a viable alternative and it would not be unreasonable or unduly harsh for the applicant to live in a place of her own choice in Vietnam. 

19.  These were facts which the Board was entitled to find, and we are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

20.  Finally, we noted that she mentioned in her Notice of Appeal that she is a single mother and she and her son would face discrimination if they returned to Vietnam.  As her case before the Director[6] and the Board[7] was that her son was taken away by the owner of the pig farm, and she did not mention that she had brought her son with her when she came to Hong Kong, we sought to clarify this ground with her at the hearing of the appeal. 

21.  It turned out that she meant another son, who was born in Hong Kong on 26 June 2019, after the Board’s decision and after she filed the Form 86.  It would appear that she did not mention this son in any of the papers before the judge.  As such, this is a change of circumstances which is not within the purview of this appeal.  It is for the applicant to pursue such course of action based on the birth of her son as she considers appropriate.

Order

22.  For the above reasons, this appeal is dismissed.