CACV 69/2023, [2023] HKCA 775
On Appeal From [2023] HKCFI 346
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 69 OF 2023
(ON APPEAL FROM HCAL NO 91 OF 2019)
________________________
BETWEEN |
| | VU THI DUA | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
_____________________
| Before: | Hon G Lam and Chow JJA in Court |
| Date of Judgment: | 26 June 2023 |
________________
J U D G M E N T
________________
Hon Chow JA (giving the Judgment of the Court):
1. On 6 March 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 21 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 2 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 June 2018 rejecting her non-refoulement claim.
BACKGROUND
2. The Applicant is a national of Vietnam. She entered Hong Kong as a visitor on 22 November 2013, and failed to leave Hong Kong after the expiry of her extended limit of stay on 18 March 2015. On 3 March 2017, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor for being unable to repay a debt owed to the creditor. Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.
3. By a Notice of Decision dated 25 June 2018, 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 2 January 2019, 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 §§9-11 of the CALL-1 Form, as follows:
“[9] The Board considered the applicant’s oral evidence and the country of origin information [15]-[25]. It noted that the applicant did not produce any independent evidence of the loan. She also contradicted herself in describing the interest payments. Meanwhile, on the applicant’s evidence, it was implausible that she could repay the loan bearing such high interest rate within a year [32]-[37]. As a result, the Board cast doubt on the existence of the loan [38].
[10] In assessing the individual grounds, the Board noted that there was no state involvement in this private monetary dispute [41]; that the creditor only intended to intimidate the applicant without possessing the intention to harm or kill her [45]; and state protection and internal relocation were both available to her [47]-[53].
[11] For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.”
THE JUDGE’S DECISION
5. On 10 January 2019, 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 her fear that, if she was refouled back to her home country, the creditor or his subordinates would inflict more serious threat and physical harm on her, or they might even kill her because she did not have money to repay her debt owed to the creditor.
6. On 21 February 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[15] The Board had, for the reasons it had given, rejected her evidence on the loan she alleged. The grounds in paragraph [5] above are not valid to challenge the Board’s Decision
[16] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
[17] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
THIS APPEAL
7. In her Notice of Appeal filed on 6 March 2023, the Applicant repeats her allegation that if she returns to Vietnam, her life will be seriously threatened, and she may even die, because most of the creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. She also disagrees with the Director’s suggestion that she can relocate to live in another part of Vietnam away from her home.
8. In her affirmation filed on 6 March 2023, the Applicant states that she understands there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, but she fails to identify what that ground may be.
9. The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 6 March 2023.
DISCUSSION
10. 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)).
11. 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.
12. The Applicant has failed to identify or show any error in the Judge’s decision of 21 February 2023, and has failed to raise any viable ground of appeal against the Order.
13. The Applicant’s appeal has no merits, and is dismissed.
(Godfrey Lam)
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.