CACV 166/2022
[2022] HKCA 1120
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 166 OF 2022
(ON APPEAL FROM HCAL NO 417 OF 2019)
________________________
BETWEEN
|
| | PHAM THI HAU | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon G Lam and Chow JJA in Court
Date of Written Submissions: 10 May 2022
Date of Judgment: 3 August 2022
________________________
J U D G M E N T
________________________
Hon Chow JA (giving the Judgment of the Court):
1. On 27 April 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 21 April 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 11 February 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 July 2018.
BACKGROUND
2. The Applicant is a national of Vietnam. She entered Hong Kong illegally on 4 June 2015 and was arrested by police on 7 July 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim, alleging that if she returned to Vietnam, she would be harmed or killed by her creditor over her outstanding debts. Details of the Applicant’s claim were summarised by the Judge at §§1-3 of the CALL-1 Form.
3. By a Notice of Decision dated 18 July 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 11 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board accepted the Applicant’s claim of threats from her creditor over her outstanding debts, but found that it was a private monetary dispute without any official involvement, and state/police protection would be available to the Applicant upon her return to Vietnam. The Board also considered that internal relocation was available to the Applicant for her to safely move to other areas away from her home district without any risk of being located by her creditor. Accordingly, her claim for non-refoulement protection failed on all the applicable grounds.
THE JUDGE’S DECISION
6. On 14 February 2019, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 21 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“8. On 14 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she merely repeated her claim of fear of harm from her creditor as before but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
10. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
11. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”
THIS APPEAL
8. In her Notice of Appeal dated 27 April 2022, the Applicant sought to set aside the Order and requested that leave to apply judicial review be granted. She also consented to the present appeal being disposed of on paper by the Court without an oral hearing.
9. In her grounds of appeal, the Applicant stated the following: “the gravity of my circumstances have [not] been weighed or realized by Putative Respondent and Putative Interested Party while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”
10. In her supporting affirmation dated the same date, the Applicant stated that there was a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and that she had been informed that the Director and Board “did not see the grounds to [reverse] their decisions”. She also repeated that she would face the risk of being killed or tortured by her creditor in Vietnam because she could not repay her loan.
11. In her 7-page written submissions dated 10 May 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims. She claimed that she had not yet agreed on a repayment plan with her creditor and requested that her deportation be postponed. She further complained that the Board did not act in a procedurally fair manner in dealing with her application and failed to properly assess her credibility.
DISCUSSION
12. 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 of Appeal’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)).
13. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 21 April 2022, and has failed to raise any viable ground of appeal against the Order.
14. The complaint that the Applicant was not given a proper opportunity to plead her case properly has no substance because, as mentioned by the Judge at §8 of his decision, she did not set out any ground for review of the Board’s Decision in her Form 86 or supporting affirmation, and she did not request for an oral hearing of the leave application.
15. The Applicant’s appeal has no merits, and is dismissed.
| (Godfrey Lam) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicant, acting 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 being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[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.