LE HONG ANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 378 /2024, [2026] HKCA 295

On appeal from [2024] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 378 OF 2024

(ON APPEAL FROM HCAL NO 271 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 5 September 2024, Deputy High Court K W Lung dismissed the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim after the applicant filed an affirmation to seek to withdraw his application^[1]. The applicant filed a Notice of Appeal against the decision on 17 September 2024.

Grounds of appeal

2.  The applicant stated the following grounds in his Notice of Appeal and affirmation:

(1)     If he returns to Vietnam, his life would be seriously threatened or he would 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 people;

(2)     The suggestion of the Director of Immigration (“the Director”) on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)     With the nationwide social network of the gangsters and their clandestine connections with the 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.

3.  He submitted a written consent for the appeal to be disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 2 October 2024, he did not lodge any written submissions.

Legal principles

4.  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.

5.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

6.  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

7.  There is nothing wrong for the judge to dismiss the leave application upon the applicant’s confirmation by way of affirmation that he wants to withdraw his application.  The applicant has not identified any error in the judge’s decision. 

8.  The appeal is devoid of merit and is dismissed accordingly.