CACV 550/2024, [2025] HKCA 230
On Appeal From [2024] HKCFI 3497
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 550 OF 2024
(ON APPEAL FROM HCAL NO 2169 OF 2019)
____________
BETWEEN |
| | NGUYEN VAN THANH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative |
| | | Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
____________
| Before: | Hon Au and G Lam JJA in Court |
| Date of Judgment: | 2 April 2025 |
_________________
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 Bruno Chan (“Judge”) on 12 December 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 26 July 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 4 October 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The Applicant is a 59-year-old national of Vietnam who entered Hong Kong illegally on 31 January 2015. He surrendered to the Immigration Department on 9 February 2015 and raised a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or killed by his creditor over his outstanding debts. The applicant was subsequently released on recognizance pending the determination of his claim.
3. The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 4 October 2017, the Director rejected his claim.
4. The applicant appealed to the Board against the Director’s decision. The Board scheduled a hearing of the appeal on 12 June 2019, but it is not clear from the Board’s decision whether the applicant attended the hearing, as explained below. In its decision dated 26 July 2019, the Board dismissed the applicant’s appeal upon finding material inconsistencies and discrepancies in his evidence. The Board rejected the applicant’s claim of being in debts or that he came to Hong Kong because he feared being harmed or killed by his creditor. In any event, the Board found the matter concerned was a private monetary dispute and that state protection would be available to the applicant upon his return to Vietnam.
The Judge’s decision
5. On 30 July 2019, 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. He did not specify any ground in the Form 86 or in the accompanying affirmation, but merely repeated his claimed fear of harm from his creditor. A hearing was conducted on 19 November 2024 during which the applicant merely repeated that his creditor would try to kill him in Vietnam.
6. In the Judge’s decision of 12 December 2024, he noted that although there were inconsistent statements in the Board’s decision as to whether the applicant was absent from the hearing or he did attend the hearing and gave evidence, the Board did proceed to find that on the applicant’s own case, the matter concerned was a private monetary dispute and also found that state protection would be available. On such basis, the Judge was not satisfied that there would be any prospect of success in the applicant’s intended judicial review. Accordingly, he refused to grant leave to the applicant to apply for judicial review.
Appeal to this Court
7. On 17 December 2024, the applicant filed his Notice of Appeal against the Judge’s decision. In his stated grounds of appeal, he first reiterated his claimed fear of harm from his creditor and then denied the availability of internal relocation as raised by the Director.
8. The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 17 December 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, although the Board made inconsistent statements in its decision as to whether the applicant was absent from the hearing or he did attend the hearing and gave evidence, it rejected the applicant’s claim because it found that the matter concerned was a private monetary dispute and that state protection 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. As to the applicant’s claim in his Notice of Appeal about the unavailability of internal relocation, it was just a bare assertion without any evidence in support. It does not constitute a viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].
12. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, the applicant 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.
13. 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 3497
[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).