CACV 292/2024, [2025] HKCA 175
On Appeal From [2024] HKCFI 1696
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 292 OF 2024
(ON APPEAL FROM HCAL NO 578 OF 2024)
____________
BETWEEN |
| | VU VAN THIEP | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ | Putative |
| | NON-REFOULEMENT CLAIMS | Respondent |
| | PETITION OFFICE | |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
____________
| Before: | Hon Au and G Lam JJA in Court |
| Date of Judgment: | 13 March 2025 |
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J U D G M E N T
_________________
Hon G Lam JA (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 11 July 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 December 2023. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 22 September 2023 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant, aged 39, is a Vietnamese. He entered Hong Kong illegally on 18 May 2023 and was arrested by the police on 14 June 2023. The applicant made a non-refoulement claim on 21 June 2023. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor because he failed to repay a loan owed to him. The factual background of the applicant’s claim was set out in [23] to [40] of the Board’s decision.
3. By notice of decision dated 22 September 2023, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]
4. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 29 November 2023, during which the applicant gave evidence and answered questions from the Board. In its decision dated 19 December 2023, the Board dismissed the appeal and affirmed the decision of the Director. The Board found that the claimed injury suffered by the applicant was far off from the requisite level of severity to warrant non-refoulement protection and that the problem he faced was private in nature with no evidence of state involvement. In any event, state protection and internal relocation would also be available according to the country of origin information (“COI”).
The Judge’s decision in the court below
5. About 3 weeks beyond the 3-month time limit for bringing judicial review proceedings as prescribed by Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), on 10 April 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In his accompanying affirmation, he asserted that the Director did not fully consider his background. He claimed that his life would be in danger upon return to Vietnam and he wanted to remain in Hong Kong for protection. As the applicant could only properly apply for leave for judicial review of the Board’s decision, his application was taken as directed to the Board instead.
6. The Judge considered the application on the basis of the documents alone as the applicant did not request for an oral hearing. On 11 July 2024, the Judge issued his decision to refuse the applicant an extension of time for applying for leave for judicial review and dismissed his application for leave to apply for judicial review. The reasons were set out in [17] to [21] of the Form CALL-1 as follows:
“ 17. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.
18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
19. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘ 13. (1) … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.’
20. The Board had considered his evidence and made reference to the COI before coming to its conclusion. The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is nothing amiss in the Board’s views.
21. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”
Appeal to this Court
7. On 17 July 2024, the applicant filed his Notice of Appeal against the Judge’s decision. He merely reiterated his claimed fear of harm from the creditor and alleged that internal relocation would not be feasible.
8. The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 17 July 2024. As he has given consent in writing for this appeal to be disposed of on paper without an oral hearing, we shall accordingly determine the appeal on the basis of the available documents and materials.
Discussion
9. In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.
10. In the present case, the Board found that the claimed injury suffered by the applicant was far below the requisite level of severity and that the problem he faced was private in nature with no evidence of state involvement. Upon consideration of the COI, the Board also found that state protection and internal relocation would be available. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.
11. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, he has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.
12. The applicant’s appeal is accordingly dismissed.
(Thomas Au)
Justice of Appeal | (Godfrey Lam)
Justice of Appeal |
The Applicant, unrepresented, acting in person
[1] [2024] HKCFI 1696
[2] This refers to the 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).
[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 and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).