Luu Thi Van v. Torture Claims Appeal Board /Non Refoulement Claims Petition Office

CACV 103/2021

[2021] HKCA 1716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2021

(ON APPEAL FROM HCAL NO 2342 OF 2018)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  18 May 2021

Date of Judgment:  23 November 2021

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J U D G M E N T

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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 Deputy Judge”)  dated 2 March 2021 refusing to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  on 22 October 2018.  By its decision, the Board confirmed the decision of the Director of Immigration (“the Director”)  on 5 April 2017 refusing the applicant’s claim for non-refoulement protection.

2.By written confirmation dated 15 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 31 May 2015, she entered Hong Kong illegally.  On 2 June 2015, she was arrested by the police.  She was subsequently referred to the Immigration Department and then lodged a non-refoulement claim.

4.As summarised by the Deputy Judge in [3] of the CALL-1 Form ([2021] HKCFI 452), the applicant claimed that she had borrowed a loan in 2005 for her seafood business.  As she was unable to repay the loan, the lender had threatened to kill her on four occasions since March 2014.  On the fifth occasion in early May 2015, she was assaulted by various men who came with the lender.  She then left Vietnam for Hong Kong via Shenzhen.

THE DIRECTOR’S DECISION

5.By a notice of decision dated 5 April 2017, the Director rejected the applicant’s non-refoulement claim.  The Director assessed the level of applicant’s risk of harm to be low, and found that state protection was available and internal relocation was viable.  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 against the Director’s decision to the Board and attended a hearing before the Board on 24 May 2018. By a decision dated 22 October 2018, the Board rejected her appeal and confirmed the Director’s decision.

7.Finding her evidence internally inconsistent and implausible, the Board did not accept that the applicant had started a business or had borrowed a loan for it.  The Board further found that in any event reasonable state protection was available to the applicant and internal relocation was a viable option for her.

THE DEPUTY JUDGE’S DECISION

8.The applicant filed a Form 86 on 25 October 2018 to apply for leave to apply for judicial review of the Board’s decision.  She did not set out any grounds of review in the Form 86 or in the supporting affirmation.  She only repeated her claim and stated that the Board’s decision was unfair.  No request for oral hearing was made.  The Deputy Judge dealt with the application on paper.

9.The Deputy Judge observed that the Board had rejected the applicant’s account of the facts on the basis of major inconsistencies in her evidence and implausibility of her claims.

10.Referring to the relevant principles in Nupr Mst v Director of Immigration [2018] HKCA 524 and Re Moshin Ali [2018] HKCA 549, the Deputy Judge held at [15] of the CALL-1 form that:

“… the assessments of evidence and risk of harm as well as the findings of reasonable 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.”

11.The Deputy Judge went on to give the following reasons for refusing to grant leave to apply for judicial review:

“16. The applicant stated no grounds of the judicial review in Form 86 … or in the affirmation to suggest how the Board erred in the public law sense. 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.

17. Further, even if one gives her account the most favourable interpretation, the alleged past ill-treatments were of low intensity and frequency. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of serious ill-treatment or proscribed harm, if refouled.

18. 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.

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

THE APPEAL

12.On 15 March 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.”

13.In her affirmation also of 15 March 2021, the applicant stated her understanding that there was a good ground of appeal that was not necessarily considered at the leave application, without any further elaboration.

14.In her written submission dated 18 May 2021, the applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the general proposition that high standards of fairness are required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She 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 general proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.

DISCUSSION

15.The Deputy Judge correctly identified the applicable 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 the court will not interfere with their decisions unless there are errors of law or procedural unfairness or irrationality in their decisions.  Having reviewed the materials available, the Deputy Judge found no such errors or unfairness or irrationality.  He held that the applicant had no reasonable prospect of success in her intended challenge to the Board’s decision.

16.In an appeal to this Court, it is necessary to identify errors made by the judge; general assertions of error without specific details are not enough to give rise to viable grounds of appeal. (Farrukh Zaib [2020] HKCA 408 at [24] and [28]).

17.The ground of appeal advanced by the applicant in her Notice of Appeal simply asserted that the Director and the Board did not properly consider her claim, without identifying any specific error in the decision of the Deputy Judge.  Her stated understanding in her affirmation of 15 March 2021 that there is a good ground of appeal is without any particulars.  The general propositions in her written submissions of 18 May 2021 also cannot give rise to any viable grounds of appeal.

18.No specific error by the Deputy Judge having been identified or demonstrated, the appeal is dismissed.

The Applicant, acting in person