Case Detail

CACV 51/2023, [2023] HKCA 900

On Appeal From [2023] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 51 OF 2023

(ON APPEAL FROM HCAL NO 2568 OF 2018)

________________________

BETWEEN

	DINH THI HAI	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Au and Chow JJA in Court

Date of Judgment:

3 August 2023

________________________

J U D G M E N T

________________________

Hon Chow JA (giving the Judgment of the Court):

1. On 12 June 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order of Deputy High Court Judge K W Lung dated 10 February 2023 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 20 September 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 20 December 2017 rejecting her non-refoulement claim.

2. By Notice of Motion dated 19 June 2023, the Applicant applied for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant repeated her claim that she would be tortured, beaten or even killed by her creditor if she returned to Vietnam. She disagreed with the Director that she could relocate to live in another part of Vietnam away from her home, and alleged that the Director failed to consider her human rights. She failed to identify any error in the CA Judgment, or raise any valid or proper ground of appeal against the CA Judgment.

3. The Applicant has failed to lodge written submissions in support of her application contrary to the directions given by the Registrar of Civil Appeals on 19 June 2023.

4. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

5. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person

CACV 51/2023, [2023] HKCA 706

On Appeal From [2023] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 51 OF 2023

(ON APPEAL FROM HCAL NO 2568 OF 2018)

________________________

BETWEEN
	DINH THI HAI	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________________

Before:

Hon Au and Chow JJA in Court

Date of Judgment:

12 June 2023

_______________

J U D G M E N T

_______________

Hon Chow JA (giving the Judgment of the Court):

1. On 20 February 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 10 February 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 September 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 December 2017 rejecting her non-refoulement claim.

BACKGROUND

2. The Applicant is a national of Vietnam. She entered Hong Kong illegally on 4 April 2017 and surrendered to the Immigration Department two days later. Subsequently, on 25 April, 23 May, and 4 June 2017, she made a claim for non-refoulement protection on the basis that if she was refouled, she would be killed by her creditor or his followers because of her inability to pay her debt. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3. By a Notice of Decision dated 20 December 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the 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 20 September 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“上訴委員會考慮了原居國資訊，並裁定申請人關於越南警方因爲受賄而不會協助她的這項指控與客觀材料不符 (見：第30段至第38段)。同時，上訴委員會裁定申請人所受的傷害並不嚴重，未構成最低要求的嚴苛程度 (見：第41段至第42段)。此外，上訴委員會裁定她與債主的糾紛爲私人糾紛，且根據上述資訊，越南警方亦不會對她受騷擾的事件坐視不理 (見：第46段至第49段)。最後，上訴委員會認爲國内遷移對申請人來説完全合理可行 (見：第56段至第61段)。”

THE JUDGE’S DECISION

5. On 15 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation of the same date, she stated that if she was refouled back to her home country, her life would be in danger, and she might even be killed by her creditor or his followers because she was unable to repay her debt.

6. On 10 February 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] 申請人在誓章內未能提出合理理由反對處長或上訴委員會對事實的判決。
[16] 本席認爲上訴委員的決定沒有法律誤判、程序不公或是有違常理。
[17] 因此，本席認爲沒有任何證據顯示，申請人建議對上訴委員會的決定作出司法復核，有任何合理的成功機會。”

THIS APPEAL

7. In her Notice of Appeal filed on 20 February 2023, the Applicant stated that if she returned to Vietnam, her life would be seriously threatened, and she might even die. She disagreed with the Director’s finding that she could move to live in another location in Vietnam.

8. The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 20 February 2023.

DISCUSSION

9. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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, at §14(6)).

10. Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11. The Applicant has failed to identify or show any error in the Judge’s decision of 10 February 2023, and has failed to raise any viable ground of appeal against the Order.

12. The Applicant’s appeal has no merits, and is dismissed.

13. This judgment is written in English because the Applicant’s Notice of Appeal is written in English. If required, the Applicant may arrange with the Clerk to this Court for this judgment to be orally interpreted to her in the Court’s premises.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
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.

DINH THI HAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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