Ngo Quoc Phuc v. Torture Claims Appeal Board

CACV 521/2020

[2021] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 521 OF 2020

(ON APPEAL FROM HCAL NO 926 OF 2018)

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Before: Hon Kwan VP, Chu JA and Au JA

Date of Written Submission: 30 December 2020

Date of Judgment: 23 April 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):

1.The applicant lodged a Notice of Appeal on 28 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020^[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.The applicant is a national of Vietnam.  He is 30 years old.  He entered Hong Kong illegally on 23 September 2015 and was arrested by police on the same day.  On 27 September 2015, he raised a non‑refoulement claim on the basis that if he returns to Vietnam he will be harmed or killed by his creditor for failing to repay his debt. 

3.The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  He lodged his written submissions on 30 December 2020 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decision

4.By a Notice of Decision dated 20 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

5.Taking into account the low intensity and frequency of past ill-treatment from the applicant’s creditor, the Director considered that the level of risk of harm upon the applicant's return to Vietnam is low.  The Director also assessed that the harm inflicted by the creditor and his fellows did not attain the minimum level of severity required for non-refoulement protection.  The Director further considered that the applicant’s problem with the creditor is a private dispute without any official involvement.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

6.The applicant appealed to the Board against the Director’s decision.  The Board conducted an oral hearing on 1 December 2017.  The Board found that the applicant’s claim that he is at risk of harm is only his own speculation and the ill-treatment had not attained the minimum level of severity.  As the creditor and his fellows were non-state actors, the Board considered it highly unlikely that the creditor would be able to locate the applicant if he relocates to other places in Vietnam and internal relocation will not be unduly harsh for him.  Thus, the Board decided that the applicant is not entitled to non-refoulement protection and rejected the appeal on 20 March 2018. 

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 24 May 2018 to seek leave to apply for judicial review against the decision of the Board. He only stated in his supporting affirmation that he cannot go back to Vietnam as he cannot repay the debt and the creditor had threatened to kill him.  He did not put forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

8.The judge found that the applicant does not have any reasonably arguable basis to challenge the findings of the Board.  The judge was not satisfied that the applicant has any prospect of success in his intended judicial review as there is no error of law or procedural unfairness in the decisions of the Director and the Board.  Therefore, the leave application was dismissed on 18 September 2020.

Grounds of appeal

9.The applicant filed a notice of appeal on 28 September 2020 in which he stated the followings as his grounds of appeal:

(1)  the gravity of his circumstances had not been weighed or realized by the putative respondents while considering his non-refoulement claim;

(2)  he should be given an opportunity to plead his case properly.

10.In his written submissions, he put forward further contentions as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility;

(3)  the Board only drew negative inferences to his case from the Country of Origin information which was not a balanced view of the information; and

(4)  the Director and the judge failed to acknowledge the presence of state acquiescence.

Legal Principles

11.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.

12.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 scrutinizing 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.

13.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

14.The applicant’s grounds were not raised in his previous leave application.  The Court of Appeal would not entertain these new grounds as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[6].

15.In any event, his grounds are just bare assertions without particulars and evidence in support.  He has failed to provide evidence to refute the findings of the Board.  He has also failed to show that the judge had made any error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.

The Applicant (Appellant), acting in person