CACV 256/2021
[2021] HKCA 1569
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 256 OF 2021
(ON APPEAL FROM HCAL NO 2776 OF 2018)
________________________
BETWEEN
| | TRAN THI BAU | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITON OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
| Before: | Hon Au and Chow JJA in Court |
| Date of Judgment: | 4 November 2021 |
________________________
J U D G M E N T
________________________
Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order of Deputy High Court Judge To (“the Judge”) dated 6 May 2021 refusing to grant leave to the Applicant to apply for judicial review. This Judge correctly treated the intended application for judicial review as being against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 7 September 2018, whereby the Board dismissed the Applicant’s appeals against the decisions dated 16 August 2016 and 28 February 2017 respectively of the Director of Immigration (“the Director”).
BACKGROUND
2. The Applicant is a national of Vietnam. She entered Hong Kong illegally with her son (an adult) and surrendered to the Immigration Department on 13 October 2014.
3. In due course, she lodged a non-refoulement claim on the basis that if refouled to Vietnam, she would be harmed or killed by her creditors. Details of the Applicant’s claim have been summarised by the Judge at §§8-12 of the CALL-1 Form.
4. By a Notice of Decision dated 16 August 2016, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture,[1] BOR 3 risk,[2] and persecution risk[3] (“the Director’s Decision”).
5. By a Notice of Further Decision dated 28 February 2017, the Director rejected the Applicant’s claim based on BOR 2 risk (“the Director’s Further Decision”).[4]
6. The Board heard the Applicant’s appeals against both the Director’s Decision and Further Decision together.
7. On 7 September 2018, the Board dismissed the Applicant’s appeals and affirmed the Director’s Decision and Further Decision (“the Board’s Decision”). The Board found that while the Applicant’s story was consistent with the series of debt collection incidents, it was satisfied that state protection of a reasonable standard was available to Vietnamese citizens including the Applicant (see Form CALL-1 at §13). The Board also found that the Applicant had failed to establish the basic requirements for affording non-refoulement protection based on torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.
THE JUDGE’S DECISION
8. On 5 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Director’s Further Decision. For the benefit of the Applicant and in the interest of justice and efficient case management, the Judge proceeded to consider whether there were good grounds in support of an application for judicial review of the Board’s Decision since the decisions of the Director were superseded by the Board’s Decision and no longer susceptible to judicial review: Re Moshsin Ali[2018] HKCA 549 (§6).
9. The Judge considered that the Applicant provided no ground for seeking relief, and her supporting affirmation only related to various findings of fact, which were within the province of the Board (§18).
10. Citing Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1), the Judge held that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh and the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision by the Board (§19).
11. The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§19), and concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§20).
12. Accordingly, on 6 May 2021, the Judge refused the Applicant’s application for leave to apply for judicial review.
THIS APPEAL
13. In her Notice of Appeal dated 18 May 2021, the Applicant repeated her fears if refouled to Vietnam. On the same date, the Applicant consented to the appeal being disposed of on paper without an oral hearing.
14. The Applicant did not lodge any written submissions.
DISCUSSION
15. In non-refoulement cases, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1)).
16. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
17. The Applicant has not identified any errors of law or failure by the Judge to take account of relevant matters already placed before him, or showed that the Judge’s decision is otherwise plainly wrong.
18. For the above reasons, the present appeal has no merits, and is dismissed.
| (Thomas Au) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.