Nguyen Thanh Quang v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 71/2021

[2021] HKCA 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2021

(ON APPEAL FROM HCAL NO 1304 OF 2018)

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DECISION

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge C P Pang on 9 February 2021, refusing the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 26 June 2018. By its decision, the Board confirmed the decision of the Director of Immigration (“Director”) dated 30 January 2018, refusing the applicant’s claim for non-refoulement protection.

2.By written confirmation dated 22 February 2021, the applicant consented to the disposal of this appeal on paper without an oral hearing.  He lodged his written submission on 11 May 2021.

BACKGROUND

3.The applicant is a national of Vietnam.  In July 2015, he surrendered to the Immigration Department claiming that he had entered Hong Kong illegally a few days before his surrender.  He then lodged a non-refoulement claim.

4.As summarised by the judge in [3] of the CALL-1 Form ([2021] HKCFI 281), the applicant claimed that he borrowed a loan in 2014 to set up a business.  When he was unable to repay the loan, his creditor and other men attacked him with wooden poles and sword.  He was not seriously injured and did not see a doctor or make a report to the police.  In order to repay the loan, he attempted a robbery together with an accomplice, in the course of which he wounded the victim.  He fled and went into hiding.  His family later told him that his creditor had looked for him and threatened to kill him.  He was also wanted by the police. He eventually entered Hong Kong illegally through the Mainland.  The applicant claimed that, if refouled, he would be harmed or even killed by (i) his creditor; and (ii) the victim whom he attempted to rob.

THE DIRECTOR’S DECISION

5.By a Notice of Decision dated 30 January 2018, the Director rejected the applicant’s non‑refoulement claim.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm to be low and that both state protection and internal relocation were viable options available to the applicant.  The Director’s decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4].

THE BOARD’S DECISION

6.The applicant appealed the Director’s decision to the Board and attended the Board’s hearing on 8 June 2018.  By a decision dated 26 June 2018, the Board rejected the appeal and confirmed the Director’s decision on all applicable grounds.

7.The Board found that the fear of harm from the creditor had arisen out of a money dispute, and the creditor’s attack was only a gesture to pressurize him to repay as his injuries were minor.  There was no evidence that his creditor had any intention to kill him and his injuries did not attain the required minimal degree of severity.

8.The Board found that the threat of retaliation by the victim of the attempted robbery was not the reason why the applicant came to Hong Kong, as he was told of the threat by his family after he had already fled to Hong Kong.  The Board further found that internal relocation was available to the applicant.

THE JUDGE’S DECISION

9.The applicant filed a Form 86 on 6 July 2018 to apply for leave to apply for judicial review of the Board’s decision.  The Form 86 and the supporting affirmation repeated the applicant’s claimed fear arising from his inability to pay his debt.  No request for oral hearing was made and the judge considered the application on the papers.

10.The judge observed that the Board did not take issue with the applicant’s asserted primary facts and events, but disagreed with the applicant on the assessment of risk.

11.At [15] of the CALL-1 form, the judge referred to the relevant principles in Nupr Mst v Director of Immigration [2018] HKCA 524 and held that:-

“15. … the assessments of evidence, risk of harm and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

12.The judge went on to give the following reasons in refusing to grant leave to apply for judicial review:-

“16. The Board noted that the applicant was only told by his parents after he had fled to Hong Kong that the victim in the robbery case would retaliate. This is, the Board commented, not the reason why he came to Hong Kong… While the applicant could rely on subsequent reason (not being the original reasons for fleeing his country), there was no reasonable evidence in support of the claim that the victim would harm or kill him. The claimed fear was entirely his speculation.

17. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing specific in the form or the affirmation to suggest how the Board erred in the public law sense.

18. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

20. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standard of fairness.”

THE APPEAL

13.On 22 February 2021, the applicant filed a Notice of Appeal in person, advancing the following ground of appeal:-

“… the gravity of my circumstances have noted [sic] been weighed or realized by both [the Director and the Board] while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

14.In applicant’s written submissions lodged on 11 May 2021, he repeated his fear of being harmed or killed by his creditor and his victim in the attempted robbery, and that he was told by his family that his creditor had looked for him and threatened to kill him after he had gone into hiding as resulting of attempting the robbery.

15.The applicant submitted that high standards of fairness are required in the determination of a torture claim, referring to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289.  It was also submitted that the Board had acted in a procedurally unfair manner without properly assessing his credibility. The applicant further referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.

DISCUSSION

16.The applicant’s claimed fear of being harmed or killed by his creditor and/or the robbery victim was considered by the Board in rejecting his appeal against the Director’s decision.  The judge correctly applied the principle in Nupr Mst v Director of Immigration [2018] HKCA 524 that assessment of the evidence, Country of Origin Information materials, risk of harm, state protection and viability of internal relocation, are within the province of the Board; and that the court will not interfere with the Board’s findings unless there are errors of law or procedural unfairness or irrationality in the Board’s decision.  Having reviewed the materials available before him, the judge found no such errors or irrationality.  He held that there was no reasonable prospect of success to challenge the Board’s decision.

17.In an appeal to this Court, it is necessary to identify errors made by the judge.  The ground of appeal advanced by the applicant simply asserted that the Director and the Board did not properly consider his claim, without identifying any specific error of law or procedure on the part of the judge in refusing leave to apply for judicial review.  The ground of appeal raised by the Applicant is not a valid one.  No error by the judge having been identified, the appeal is dismissed.