RE LE ANH HONG

CACV 309/2020

[2021] HKCA 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2020

(ON APPEAL FROM HCAL NO 1888 OF 2018)

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J U D G M E N T

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

1.  On 23 August 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung, Au and Chow JJA)  judgment of 10 August 2021 (“the Judgment”)  ([2021] HKCA 1160).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Kung dated 15 July 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 1548).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  In her Notice of Motion, the applicant asserted that the Judges were wrong as a matter of law for not having applied the principles of irrationality and the principle of procedural unfairness to the decision made by the Director of Immigration (“the Director”)  and refusing her application for leave to apply for judicial review and the appeal.

5.  The applicant lodged her written submissions on 6 September 2021.  In those submissions the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  She submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  acted in a procedurally unfair manner without properly assessing her credibility.  She referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  However, it is noted that these are all general propositions and she has not shown specifically how they are relevant to her case.

6.  In our view, the applicant’s application is devoid of merits.  None of the matters raised in her Notice of Motion or written submissions identified any specific errors in the Judgment.  They were therefore not viable grounds.

7.  Her application for leave to apply for judicial review concerned the Board’s decision rather than the Director’s decision in refusing her non-refoulement claim.  In any event, the decision of the Director was not a decision that, within this administrative structure, was susceptible to judicial review once an appeal to the Board was pursued by a claimant: Re Moshsin Ali[2018] HKCA 549 at [45].  Therefore, her assertions that the Judges failed to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director were wholly misplaced and without merit.

8.  Further, the matters raised in her written submissions lodged on 6 September 2021 were essentially those previously advanced by the applicant but rejected by us at [20] to [21] of the Judgment.  She failed to point out any specific error in the Judgment.

9.  Accordingly, the applicant failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  By reason of the above, the Notice of Motion filed on 23 August 2021 is dismissed.

The applicant acting in person

CACV 309/2020

[2021] HKCA 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2020

(ON APPEAL FROM HCAL NO 1888 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 15 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”)  [2020] HKCFI 1548.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 27 August 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 November 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 28 July 2020.  On the same date, she consented to have this application to be disposed of on paper without an oral hearing.  This is our judgment.

A.  Background

4.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 16 June 2015 and surrendered to the Immigration Department on 23 July 2015.  She lodged her non-refoulement claim on 20 March 2017.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 6 of the Director’s Decision, and paragraph 11 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by Dung and his family members if refouled.  The applicant was a café owner.  In around April 2015, she was requested by the police to act as a prosecution witness in court proceedings against one of her customers, Dung.  Shortly after such request, she was threatened and assaulted by Dung’s followers who did not want her to be the witness.  Later in June 2015, Dung was convicted and sentenced to life imprisonment.  The applicant was threatened and assaulted by someone who blamed her for Dung’s imprisonment.  Out of fear, she fled to Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3], and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The Board decided not to hold an oral hearing for the applicant and proceeded to consider her appeal on paper.  It further found that the applicant’s credibility was in doubt as she failed to provide any concrete proof of her claim, and that, even taking the applicant’s claim to the highest, her dispute with Dung was only private in nature (paragraphs 29 - 35 of the Board’s Decision).  In any event, the Board found that her suggestion that Dung and his family could locate her anywhere in Vietnam and cause her harm was speculation, and internal relocation was available to the applicant (paragraphs 26, 83 - 89 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 10 September 2018 seeking leave to apply for judicial review against the Board’s Decision.  She only repeated her fear in her supporting affirmation without advancing any grounds of review.

10.  After hearing the applicant and considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons at [14] - [17] of the Deputy Judge’s Decision:

“DISCUSSION

14.  The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her. The interpreter of the Board had explained to her the Board’s Decision. She had no comments on the Board’s Decision.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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.’

16.  There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

D.  Grounds of appeal

11.  The applicant’s ground of appeal in her Notice of Appeal was that:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” [sic]

12.  In her supporting affirmation filed on the same date, she simply submitted that there was a good ground of appeal that was not considered by the Deputy Judge.  Yet, she failed to elaborate on what the said good ground was.  In her written submissions, she quoted passages from ST v Director of Immigration[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  It is pertinent to note that none of these arguments were put forward before the Deputy Judge.

E.  Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  They can be summarized as follows.

14.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  Third, 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.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A).

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

18.  Bearing these principles in mind, we are of the view that this appeal has no merit.

19.  The applicant’s ground of appeal as set out at [11] above is clearly not sustainable.

20.  As mentioned, the arguments advanced by the applicant on this appeal were not put forward before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Re Daljit Singh[2018] HKCA 328; Re Qadir Sher[2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [40] and [41].  In this light, there is simply no viable ground of appeal against the Deputy Judge’s Decision.  On this basis alone, we will dismiss the appeal.

21.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We agree with the Deputy Judge that there is no ground warranting any interference of the Board’s Decision by the court by way of judicial review.

22.  For all these reasons, we dismiss the appeal.

The applicant acting in person