Re Nguyen Thi Bich Thoa

CACV 364/2020

[2021] HKCA 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 364 OF 2020

(ON APPEAL FROM HCAL NO 2856 OF 2018)

________________________

________________________

Before:  Hon Cheung, Chu and Au JJA in Court

Date of Written Submissions:  6 November 2020

Date of Judgment:  7 May 2021

____________________

J U D G M E N T

____________________

Hon Au JA (giving the Judgment of the Court):

1.This is the appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 5 August 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1857.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 December 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 February 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed her Notice of Appeal on 13 August 2020.  On the same date, she consented to this application to be disposed of on paper by this Court without an oral hearing.  This is our judgment.

A.      Background

4.The applicant is a national of Vietnam.  She has been in and out of Hong Kong since 1989 and her last entry in Hong Kong was on 23 April 2013 when she illegally entered Hong Kong and was arrested by the police on 24 April 2013. She lodged a non-refoulement claim on 3 September 2014.

5.The details of the applicant’s claim and her personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 2 - 14 of the Board’s Decision.

6.The applicant claimed that she would be harmed or killed by the police in her home country upon refoulement.  In gist, the basis of the applicant’s non-refoulement claim was that she was ill treated by the police in her home country because they suspected that she was influenced by capitalism, had anti-government mentality and might be a spy.

B.      The Director’s Decision and the Board’s Decision

7.The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.The applicant appealed the Director’s Decision to the Board.  A hearing was held on 1 November 2018, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed her appeal.

9.The Board reminded itself of the legal principles governing the assessment of the applicant’s credibility.  It concluded that the applicant was not a credible witness (paragraphs 27 - 61 of the Board’s Decision).  In any event, state protection and internal relocation were both available to the applicant (paragraphs 76 - 84 and 106 - 113 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.      The Deputy Judge’s Decision

10.The applicant filed a Form 86 on 13 December 2018 seeking leave to apply for judicial review against the Board’s Decision.  She did not request an oral hearing.  In her supporting affirmation filed on the same date, she only repeated her claim without advancing any grounds of review against the Board.

11.After considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at [12] ‑ [16] of the Deputy Judge’s Decision:

“DISCUSSION

12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

13. 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.’

14. The grounds raised by the applicant are her opinions without any evidence or particulars in support of them. her fear of being framed up by police and she would be subjected to death penalty was taken note by the Board. However, there is no evidence that she was charged with the offence of subversion by the government. The Board also took the view that she had no evidence to support her allegations [44-48]. In the circumstances, the Board was simply right to attach no weight to her allegations.

15. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

D.      Grounds of appeal

12.The applicant’s ground of appeal in her Notice of Appeal was that:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” [sic]

13.In her supporting affirmation filed on the same date, she simply submitted that there was a good ground of appeal that was not considered by the Deputy Judge. Yet, she failed to elaborate on what the said good ground was.  Pursuant to the directions of Registrar of Civil Appeals dated 27 October 2020, the applicant filed her skeleton submissions on 6 November 2020.  In that, she submitted that the Deputy Judge wrongly accepted the Director’s version of country of origin information.

14.She also quoted passages from ST v Director of Immigration [2014] 4 HKLRD 277[5] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap 115) which is about the late filing of notice of appeal to the Board.  However, she again did not explain and elaborate on how the aforesaid cases and statutory provision were related to or would assist her case.

E.      Discussion

15.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.Bearing these principles in mind, we are of the view that this appeal has no merit.

21.The only ground of appeal advanced against the Deputy Judge in the Notice of Appeal and the written submissions is his alleged error in accepting the Director’s version of country of origin information.  The applicant argued that the report titled “Human Rights Watch Report 2019 Vietnam Chapter” was to be preferred as the credible country of origin information.  In our view, this argument does not assist the applicant.  To start with, the decision under challenge before the Deputy Judge was the Board’s Decision instead of the Director’s Decision. There is no allegation against the Deputy Judge for wrongly accepting the Board’s assessment of the country of origin information.  Further, the applicant fails to provide any details of the said report.  If the said report was issued in 2019 as the title suggested, the decisions of the Board and the Director both predated the said report and thus the purported report was not before them.  It therefore could not vitiate their respective decisions.  In any event, the Deputy Judge was tasked to examine the Board’s Decision in light of the grounds of review.  The applicant failed to advance any ground challenging the Board or the Director’s assessment of the country of origin information.  It is thus not open to the Applicant to contend that the Deputy Judge erred in accepting their assessments.  This is not a viable ground.

22.The rest of the grounds in the applicant’s written submissions are against the Board and the Director.  They do not show in any respect any error in the Deputy Judge’s Decision and are therefore also not viable grounds of appeal.

23.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

24.For all these reasons, we dismiss the appeal.

The applicant acting in person