Re Nguyen Thi Ha

CACV 246/2021

[2021] HKCA 1564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2021

(ON APPEAL FROM HCAL NO 1303 OF 2018)

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Before: Hon Chu and G Lam JJA in Court

Date of Written Submissions: 8 July 2021

Date of Judgment: 28 October 2021

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.On 4 May 2021, Deputy High Court Judge Bruno Chan (“Judge”) refused 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 15 June 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 16 December 2016 rejecting the applicant’s non-refoulement claim.

2.On 13 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.The applicant is a Vietnamese national. She surrendered herself to the Immigration Department on 21 December 2015, having entered Hong Kong illegally. On the same day she lodged a non-refoulement claim. Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by a creditor who was a gangster, for failure to repay a loan. The factual background of her claim was set out at [20] of the Board’s decision.

4.By notice of decision dated 16 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

5.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 10 April 2018, during which the applicant stated that she did not have further evidence. Based on the applicant’s evidence, the Board found that as she had not suffered any severe pain or suffering or serious harm, there was no real risk of harm in the event of refoulement. The applicant’s credibility was not in issue. The Board also found that internal relocation was viable in any event. Therefore, on 15 June 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

6.On 6 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision. In her supporting affirmation, the applicant stated that her creditor and his subordinates could have inflicted more serious harm had they intended to do. However, she did not put forward any specific grounds for judicial review.

7.Following consideration of the documents only, on 4 May 2021 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [12]-[14] of the Form CALL-1 ([2021] HKCFI 1217, HCAL 1303/2018) as follows:

“ 12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or or irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.” [sic]

Appeal to this Court

8.On 13 May 2021, the applicant filed her Notice of Appeal against the Judge’s decision, in which she reiterated the factual basis of her claim, and stated that she wished to appeal the decisions of the Board and the Judge, but did not set out any specific grounds of appeal.

9.On the same day that she filed the Notice of Appeal, the applicant consented in writing for the appeal to be disposed of on paper without an oral hearing.

10.The applicant lodged her written submissions on appeal on 8 July 2021. In those submissions, she reiterated the factual basis of her claim that if she returned to Vietnam, she life would be under serious threat from her creditor. She asserted that the Immigration Department did not consider her human rights under the Hong Kong Basic Law, the Hong Kong Human Rights and Democracy Act, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights. She asked the Court of Appeal to give her a chance to seek asylum in Hong Kong. However, she still did not provide any particulars in terms of any alleged error in the Judge’s decision.

Legal principles

11.In assessing the merit 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.

Discussion

12.As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of an appeal. She did not identify any specific error in the Judge’s decision or any other specific potential ground for reversing the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

13.As we will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds that point to any error by the Judge, the appeal should be dismissed.

14.In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its finding that as she had not suffered any severe pain or suffering or serious harm and its consequent conclusion that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable. These findings were open to the Board on the evidence available, and the court will not interfere with such assessments unless they are vitiated on public law grounds. As the Judge said, there were simply no such grounds advanced or made out.

15.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

16.For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person