CACV 223/2023, [2024] HKCA 989
On appeal from [2023] HKCFI 1695
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 223 OF 2023
(ON APPEAL FROM HCAL NO 986 OF 2019)
________________________
BETWEEN |
| | Dao Thi Bich Lien alias Dao Thi Dung | Applicant |
| | and | |
| | Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office | Putative
Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
________________________
| Before: | Hon Kwan VP and Chow JA in Court |
| Date of Judgment: | 25 October 2024 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 30 June 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 14 July 2023.
2. The applicant is a national of Vietnam. She is 54 years old. She claimed that she sneaked into Hong Kong from Shenzhen on 10 April 2016. She surrendered to the Immigration Department on 12 April 2016 and lodged a non-refoulement claim on 25 May 2016. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditors and their followers as she was unable to repay the debt.
The Director’s decision
3. By a Notice of Decision dated 9 December 2016, 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].
4. In view of the absence or low intensity and frequency of past ill-treatment, the Director assessed that the future risk of harm upon the applicant’s return to Vietnam was low. Even assuming that the applicant was injured in one incident, the Director did not accept that the asserted ill-treatment had attained the minimum level of severity. Furthermore, the Director considered that the creditors did not have real intention to harm or kill the applicant as they went to her home to ask for repayment without causing real harm to the applicant after she had failed to repay the loan. The Director further found that the applicant’s problem arose from a private dispute and there is no involvement of the Vietnamese government. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.
The Board’s decision
5. The applicant’s appeal against the Director’s decision was heard before the Board on 13 February 2019. The Board was not satisfied that the applicant had given a truthful account of her experiences in Vietnam because of the nature and extent of inconsistencies in her evidence. The Board did not accept that the applicant’s claim that she would be sought by the loan sharks or harmed upon her return to Vietnam. Although the Board accepted that the applicant had previously been detained for one night because of her illegal departure in Vietnam, the Board was not satisfied that the brief period of overnight detention would result in substantial ground for believing that she would suffer harm under the applicable grounds. Thus, the Board concluded that the applicant failed to establish her claim and rejected the appeal on 8 March 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 11 April 2019 to seek leave to apply for judicial review against the decision of the Board. In her supporting affirmation, the applicant only reiterated the problems she faced upon her return to Vietnam, without putting forward any grounds for her intended challenge against the Board’s decision.
The judge’s decision
7. DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge held there is no error of law or irrationality or procedural unfairness in the Board’s decision. As the applicant failed to show any realistic prospect of success in her intended judicial review, the leave application was refused on 30 June 2023.
Grounds of appeal
8. The applicant stated her grounds of appeal in her Notice of Appeal and supporting affirmation as follows:
(1) If she returns to Vietnam, her life will be seriously threatened or she will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;
(2) The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;
(3) With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;
(4) The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;
(5) The Director and the Board “did not see the grounds” to reserve their decisions.
9. The applicant has lodged a written consent for this appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 14 July 2023 requiring the applicant to lodge skeleton argument on or before 28 July 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, she shall be deemed to have abandoned her right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions in the appeal.
Legal Principles
10. 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.
11. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. 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
12. The applicant’s grounds are just bare assertions without evidence in support. She 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.
13. For the above reasons, the appeal is devoid of merit. We therefore dismiss the appeal.
(Susan Kwan)
Vice President | (Anderson Chow)
Justice of Appeal |
The Applicant (Appellant), acting in person
[1] [2023] HKCFI 1695
[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.