Ta Duy Tham v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CACV 111/2021

[2021] HKCA 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 111 OF 2021

(ON APPEAL FROM HCAL NO 487 OF 2019)

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Before: Hon Au and Chow JJA in Court

Date of Judgment: 15 November 2021

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JUDGMENT

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

INTRODUCTION

1.This is an appeal against the order of Deputy High Court Judge C P Pang (“the Judge”) dated 9 March 2021 refusing the applicant leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 11 January 2019.  By its decision, the Board confirmed the decision of the Director of Immigration (“Director”) on 29 November 2016 refusing the applicant’s claim for non-refoulement protection.

2.By written confirmation dated 22 March 2021, the applicant consented to the disposal of this appeal on paper without an oral hearing.

BACKGROUND

3.The applicant is a national of Vietnam.  On 24 March 2016, he surrendered to the Immigration Department claiming that he had entered Hong Kong illegally.  He then lodged a non-refoulement claim.

4.As summarised by the Judge in [4] of the CALL-1 Form ([2021] HKCFI 506), the applicant claimed that he had borrowed a loan in 2012 for his business.  As the applicant was unable to repay the loan, the lender and his followers assaulted him.  They also suggested that the applicant and his son should take part in drug trafficking and smuggling, but he refused and was beaten up.  He then left Vietnam on 20 March 2016 for Hong Kong through the Mainland.

THE DIRECTOR’S DECISION

5.By a notice of decision dated 29 November 2016, the Director rejected the applicant’s non‑refoulement claim.  The Director assessed the level of risk of harm to the applicant to be low, and found that state protection was available and internal relocation was a viable option 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, but failed to attend the Board’s hearing scheduled on 2 November 2018.  A reminder was sent to the applicant’s last known address, without any response.  The Board proceeded to consider the applicant’s appeal in his absence.  By a decision dated 11 January 2019, the Board rejected the applicant’s appeal and confirmed the Director’s decision.

7.The Board noted that the lender and his followers never carried weapons to beat up the applicant.  It found that they just wanted the applicant to repay the loan without causing grievous bodily harm to him although they had chances to do so.  The Board did not accept that the ill-treatment attained the required minimum level of severity.  The Board further found that reasonable state protection was available to the applicant. It concluded that the applicant did not face genuine and substantial risk of being subjected to ill-treatment if he returned to Vietnam.

THE JUDGE’S DECISION

8.The applicant filed a Form 86 on 20 February 2019 to apply for leave to apply for judicial review of the Board’s decision. He did not set out any grounds for review in the Form 86.  In the supporting affirmation, he repeated his inability to repay the loan and his fear that the lender would inflict serious harm on him or even kill him.  He did not request for an oral hearing of the leave application.  The Judge considered the application on paper.

9.The Judge observed that the Board did not take issue with the applicant’s assertions of primary facts and events, but disagreed with the applicant on the assessment of the risk of harm upon his return to Vietnam.  At [15] of the CALL-1 form, referring to the relevant principles in Nupr Mst v Director of Immigration [2018] HKCA 524 and Re Moshin Ali [2018] HKCA 549, the Judge held that:-

“… assessment of evidence, risk of harm, and availability of state protection 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.”

10.The Judge went on to give the following reasons in refusing leave to apply for judicial review:

“16. What was stated by the applicant in the Form 86 and supporting affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what he told the Director and the Board, which has been duly considered. There is no reasonable ground to challenge the findings of the Board.

17. The Board scheduled an oral hearing but he failed to attend. The applicant also failed to respond to a subsequent reminder by the Board. In the circumstances, the Board was entitled to consider the appeal in the absence of the applicant. In any event, the Board accepted the version of facts as asserted by the applicant. He could not have been prejudiced by his absence.

18. Even on his own account, the past ill treatment was of low intensity. He did not report the incidents of assault and threatening to the local police or authorities. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.

19. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

20. … there is no prospect of success in the applicant’s intended application for judicial review.”

THE APPEAL

11.On 22 March 2021, the applicant filed a Notice of Appeal in person, advancing the following ground of appeal:

“… the gravity of my circumstances have [not] 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.”

12.In his affirmation also of 22 March 2021, the applicant stated his understanding that there was a good ground of appeal that was not necessarily considered at the stage of the leave application, without any further elaboration.

DISCUSSION

13.Despite the directions of the Registrar of Civil Appeals, the applicant did not lodge any written submission.  In the circumstances, the present appeal is dealt with on the basis of the available documents and materials before the court.

14.The applicant’s claimed fear of being harmed or killed by his lender and his followers were considered by both the Director and the Board.  The Judge correctly applied the principle in Nupr Mst v Director of Immigration [2018] HKCA 524 that assessment of the evidence, risk of harm, availability of state protection and viability of internal relocation, are matters within the province of the Board and the Director; and that the court will not interfere unless there are errors of law or procedural unfairness or irrationality in their decisions.  Having reviewed the materials available before him, the Judge found no such errors or irrationality.  He held that the applicant had no reasonable prospect of success to challenge the Board’s decision.

15.In an appeal to this Court, it is necessary to identify errors made by the Judge; general assertions of error without specific details would not be enough to give rise to viable grounds of appeal.  (Farrukh Zaib [2020] HKCA 408 at [24] and [28]).  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.  No error by the Judge having been identified, the appeal is dismissed.

The Applicant, acting in person