Case Detail

CACV 512/2020

[2021] HKCA 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 512 OF 2020

(ON APPEAL FROM HCAL NO 724 OF 2018)

________________________

BETWEEN
	Nguyen Thi Trang	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Judgment: 30 July 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 10 May 2021 ([2021] HKCA 644). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020 ([2020] HKCFI 2277) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 18 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction. The applicant failed to lodge written submissions as directed. Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. She entered Hong Kong illegally in April 2014 and was arrested by the police on 23 June 2014. She raised a non-refoulement claim on 18 September 2014 on the basis that she and her husband (the applicant in CACV 513/2020) will be harmed or killed by their creditors if they return to Vietnam as they are unable to repay the debts.

4. The non-refoulement claims of the applicant and her husband were rejected by the Director of Immigration (“the Director”) on 25 April 2017. Their appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 2 March 2018.

5. The applicant and her husband filed their respective Form 86 on 25 April 2018 to seek leave to apply for judicial review against the decision of the Board. Their applications were refused by DHCJ Bruno Chan on 15 September 2020.

6. On 25 September 2020, the applicant filed her notice of appeal against the decision of DHCJ Bruno Chan. Her appeal was dealt with on paper because she has consented to the disposal of her appeal on paper by the court without an oral hearing. It was dismissed by the Court of Appeal on 10 May 2021. The applicant filed a Notice of Motion on 17 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7. The applicant stated the following grounds of appeal in the Notice of Motion:

(1) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing her application for leave for judicial review and the appeal;
(2) The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

Analysis and disposition

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9. The applicant’s grounds are just bare assertions without particulars or elaboration. Her grounds are wholly without basis. In particular, the decisions of the Director are not susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing: ReMoshsin Ali[2018] HKCA 549. The applicant also failed to demonstrate that the Court of Appeal was wrong in dismissing her appeal.

10. Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11. We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion filed on 17 May 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 512/2020

[2021] HKCA 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 512 OF 2020

(ON APPEAL FROM HCAL NO 724 OF 2018)

________________________

BETWEEN
	Nguyen Thi Trang	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission: 25 January 2021

Date of Judgment: 10 May 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. The applicant lodged a Notice of Appeal on 25 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2. The applicant is a national of Vietnam. She is 31 years old. She entered Hong Kong illegally in April 2014 and was arrested by the police on 23 June 2014. She was convicted for several offences including using a forged identity card and was sentenced to a total of 15 months’ imprisonment. She raised a non-refoulement claim on 18 September 2014 on the basis that she and her husband (the appellant in CACV 513/2020) will be harmed or killed by their creditors if they return to Vietnam as they are unable to repay the debts.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. She lodged her written submissions on 25 January 2021 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decision

4. By a Notice of Decision dated 25 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk [3], BOR 3 risk[4] and persecution risk[5].

5. The Director assessed that the level of risk of harm the applicant and her husband would face is low as they had only received verbal threats from the creditors but had not encountered any physical harm. The Director further found that their problem is a private matter with nothing to do with the Vietnamese government or authorities. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

6. Their appeal against the Director’s decision was heard before the Board on 2 February 2018. The Board found that the applicant and her husband fabricated their claims because of significant inconsistencies in their evidence. In particular, their evidence concerning the business they operated and the loans they borrowed was significantly different and was also inconsistent with their own previous accounts of the events. The Board did not accept that they experienced any problems or harm from the creditors and considered there is no real risk that they would face any of the proscribed forms of harm should they return to Vietnam. Thus, the Board decided that they failed to substantiate their non-refoulement claims on the applicable grounds and rejected their appeal on 2 March 2018.

The intended judicial review

7. The applicant and her husband filed their respective Form 86 and affirmation on 25 April 2018 to seek leave to apply for judicial review against the decision of the Board. In their respective applications, they did not put forward any specific grounds for the intended challenge but only reiterated the harm they would face if they return to Vietnam.

The judge’s decision

8. DHCJ Chan considered the leave application on the papers as the applicant did not request for an oral hearing. The judge found that the applicant does not have any reasonably arguable basis to challenge the finding of the Board as she failed to identify any error of law or procedural unfairness in the Board’s decision. The judge considered both the decisions of the Director and the Board and found no error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness. The judge held that there is no prospect of success in the intended judicial review and dismissed the leave application on 15 September 2020.

The grounds of appeal

9. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 25 September 2020:

(1) the gravity of her circumstances has not been weighed or realized by the putative respondents in considering her non‑refoulement claim;
(2) she should be given an opportunity to plead her case properly.

10. Her submissions in writing may be summarized as follows:

(1)   high standards of fairness are required in the determination of a torture claim;
(2)   the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing her credibility;
(3)   the judge found no errors of law in the Board’s decision but they drew only inferences negative to her case from the Country of Origin Information which is not a balanced view of the information;
(4)   the judge failed to acknowledge the presence of “state acquaintances”. The Vietnamese army holds the power in Vietnam and will not yield to the people.

Legal Principles

11. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

12. 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 Country of Origin Information 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.

Analysis and disposition

13. The applicant’s grounds of appeal are unmeritorious. In particular, the applicant and her husband were given sufficient opportunities to plead their case both in writing and orally at the screening interviews with the immigration officer as well as at the Board hearing. As can be seen from paragraphs 46 to 61 of the decision, the Board had considered the evidence thoroughly and given detailed explanations in the assessment of credibility. The applicant’s claim was rejected by the Board as it was found that her claim was not credible, not on the basis of an analysis of the Country of Origin Information. The Board’s decision is well founded and the applicant does not have any reasonably arguable basis to challenge its findings. In addition, there is no evidence to show that the army or the Vietnamese government has anything to do with her alleged problem.

14. As there is no merit in the appeal or the intended application for judicial review, we therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 2277

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

NGUYEN THI TRANG v. TORTURE CLAIMS APPEAL BOARD

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