Case Detail

CACV 570/2020

[2021] HKCA 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2020

(ON APPEAL FROM HCAL NO 959 OF 2018)

________________________

BETWEEN
	Bui Thi Phuong	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Judgment: 23 August 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 643). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge C P Pang dated 15 October 2020 ([2020] HKCFI 2637) refusing to grant leave for the applicant to seek judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 25 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 was previously repatriated to her home country from Hong Kong back in 2012. She entered Hong Kong illegally again on 16 October 2014. She lodged a non-refoulement claim on 2 October 2015 on the basis that if she returns to Vietnam she will be harmed or killed by her creditor and his people as she is unable to repay the debt.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 7 July 2016 and 5 March 2017. Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 22 March 2018.

5. She filed a Form 86 on 28 May 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ Pang dismissed the leave application on 15 October 2020.

6. On 23 October 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 as the applicant consented to the disposal of her appeal on paper without an oral hearing. The appeal was dismissed by the Court of Appeal on 10 May 2021. The applicant filed a Notice of Motion on 21 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. Furthermore, it has been well established that 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: Re Moshsin Ali[2018] HKCA 549 at §45.

10. Moreover, 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 the Notice of Motion filed on 21 May 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 570/2020

[2021] HKCA 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2020

(ON APPEAL FROM HCAL NO 959 OF 2018)

________________________

BETWEEN
	Bui Thi Phuong	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

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

Date of Written Submission: 8 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 23 October 2020 against the decision of Deputy High Court Judge C P Pang dated 15 October 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 52 years old. She was previously repatriated to her home country from Hong Kong back in 2012. She entered Hong Kong illegally again on 16 October 2014. On 10 March 2015, she was arrested for using forged Hong Kong identity card and taking up unlawful employment. She was sentenced to 15 months’ imprisonment. She lodged a non-refoulement claim on 2 October 2015 on the basis that if she returns to Vietnam she will be harmed or killed by her creditor and his people as she is unable to repay the debt.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. She lodged her written submissions on 8 January 2021 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decisions

4. By a Notice of Decision dated 7 July 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4].

5. The Director considered that the creditor did not have real intention to harm the applicant as he only made verbal threats but had not taken any adverse action against the applicant and her family. The Director further found that the applicant’s problem is a private matter with no involvement of the government. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

6. By a Notice of Further Decision dated 15 March 2017, the Director rejected the applicant’s claim on BOR 2 risk [5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to her non-refoulement claim.

The Board’s decision

7. The applicant’s appeal against the Director’s decisions was heard before the Board on 24 January 2018. The Board found that the applicant’s evidence is untruthful because of its inconsistencies and the implausible explanations given by the applicant. The Board did not accept that the applicant had been ill-treated and held that her fear is not well founded. The Board also found that the alleged dispute is private in nature and state protection as well as internal relocation alternatives would be available to the applicant in Vietnam. Thus, the Board decided that the applicant failed to substantiate her non-refoulement claim on the applicable grounds and rejected the appeal on 22 March 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 28 May 2018 to seek leave to apply for judicial review against the decision of the Board. She put forward the following grounds for her intended challenge:

(1) the Board cherry-picked the facts in the consideration of her claim;
(2) it underestimated her risk of being persecuted as the adjudicator had never lived in Vietnam;
(3) the Board quoted materials which were inconsistent with the real situation in Vietnam.

The judge’s decision

9. DHCJ Pang considered the leave application on the papers as the applicant did not request for an oral hearing. The judge found that the gravity of ill-treatment was low even on the applicant’s own case and the applicant does not have any reasonably arguable basis to challenge the decision of the Board which was well founded with adequate reasons. The judge considered both the decisions of the Director and the Board and found no error of law, irrational findings, 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 October 2020.

The grounds of appeal

10. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 23 October 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.

11. Her further 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.

Legal Principles

12. 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.

13. 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.

14. 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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

15. The applicant’s grounds of appeal are just bare assertions without particulars or evidence in support. In particular, she was given sufficient opportunities to plead her case both in writing and at the screening interview with the immigration officer as well as at the Board hearing. She does not have any evidence to refute the Board’s findings. She has also failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16. There is no merit in this 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 2637

[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 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).

[4] 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.

[5] 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).

BUI THI PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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