Case Detail

CACV 521/2020

[2021] HKCA 1256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 521 OF 2020

(ON APPEAL FROM HCAL NO 926 OF 2018)

________________________

BETWEEN
	Ngo Quoc Phuc	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Written Submission: 21 May 2021

Date of Judgment: 6 September 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, Chu JA and Au JA) handed down on 23 April 2021 ([2021] HKCA 542). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020 ([2020] HKCFI 2340) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 7 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 21 May 2021. Having considered his submissions, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. He entered Hong Kong illegally on 23 September 2015 and was arrested by police on the same day. On 27 September 2015, he raised a non‑refoulement claim on the basis that if he returns to Vietnam he will be harmed or killed by his creditor for failing to repay his debt.

4. His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 20 April 2017. His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 20 March 2018.

5. He filed a Form 86 on 24 May 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ Bruno Chan dismissed the leave application on 18 September 2020.

6. On 28 September 2020, the applicant filed a notice of appeal against the judge’s decision. The appeal was dealt with by the Court of Appeal on paper without an oral hearing as the applicant consented to the disposal of his appeal on paper. The appeal was dismissed by the Court of Appeal on 23 April 2021. The applicant filed a Notice of Motion on 6 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 his 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.

8. His written submissions may be summarized as follows:

(1) High standards of fairness are required in the determination of a torture claim on the part of the decision maker;
(2) The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

9. 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.

10. First of all, the applicant’s leave application concerns the Board’s decision rather than the Director’s decision. In any event, the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant: Re Moshsin Ali^{^[1]}. Therefore, the applicant’s grounds in relation to the judges’ failure to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director are wholly untenable.

11. Furthermore, the applicant’s submissions are just bare assertions which have already been rejected by the Court of Appeal. In the present application, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in its decision.

12. 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).

13. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 May 2021.

(Susan Kwan)
Vice President

(Carlye Chu)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2018] HKCA 549 at §45

CACV 521/2020

[2021] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 521 OF 2020

(ON APPEAL FROM HCAL NO 926 OF 2018)

________________________

BETWEEN
	Ngo Quoc Phuc	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Chu JA and Au JA

Date of Written Submission: 30 December 2020

Date of Judgment: 23 April 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 28 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 18 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 his non‑refoulement protection claim.

2. The applicant is a national of Vietnam. He is 30 years old. He entered Hong Kong illegally on 23 September 2015 and was arrested by police on the same day. On 27 September 2015, he raised a non‑refoulement claim on the basis that if he returns to Vietnam he will be harmed or killed by his creditor for failing to repay his debt.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 30 December 2020 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decision

4. By a Notice of Decision dated 20 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. Taking into account the low intensity and frequency of past ill-treatment from the applicant’s creditor, the Director considered that the level of risk of harm upon the applicant's return to Vietnam is low. The Director also assessed that the harm inflicted by the creditor and his fellows did not attain the minimum level of severity required for non-refoulement protection. The Director further considered that the applicant’s problem with the creditor is a private dispute without any official involvement. 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. The applicant appealed to the Board against the Director’s decision. The Board conducted an oral hearing on 1 December 2017. The Board found that the applicant’s claim that he is at risk of harm is only his own speculation and the ill-treatment had not attained the minimum level of severity. As the creditor and his fellows were non-state actors, the Board considered it highly unlikely that the creditor would be able to locate the applicant if he relocates to other places in Vietnam and internal relocation will not be unduly harsh for him. Thus, the Board decided that the applicant is not entitled to non-refoulement protection and rejected the appeal on 20 March 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 24 May 2018 to seek leave to apply for judicial review against the decision of the Board. He only stated in his supporting affirmation that he cannot go back to Vietnam as he cannot repay the debt and the creditor had threatened to kill him. He did not put forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

8. The judge found that the applicant does not have any reasonably arguable basis to challenge the findings of the Board. The judge was not satisfied that the applicant has any prospect of success in his intended judicial review as there is no error of law or procedural unfairness in the decisions of the Director and the Board. Therefore, the leave application was dismissed on 18 September 2020.

Grounds of appeal

9. The applicant filed a notice of appeal on 28 September 2020 in which he stated the followings as his grounds of appeal:

(1) the gravity of his circumstances had not been weighed or realized by the putative respondents while considering his non-refoulement claim;
(2) he should be given an opportunity to plead his case properly.

10. In his written submissions, he put forward further contentions as follows:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker;
(2) the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility;
(3) the Board only drew negative inferences to his case from the Country of Origin information which was not a balanced view of the information; and
(4) the Director and the judge failed to acknowledge the presence of state acquiescence.

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.

13. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

14. The applicant’s grounds were not raised in his previous leave application. The Court of Appeal would not entertain these new grounds as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^{^[6]}.

15. In any event, his grounds are just bare assertions without particulars and evidence in support. He has failed to provide evidence to refute the findings of the Board. He has also failed to show that the judge had made any error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16. For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Carlye Chu)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 2340

[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.

[6] Re Qadir Sher[2018] HKCA 160 at §11

NGO QUOC PHUC v. TORTURE CLAIMS APPEAL BOARD

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