Do Thi Nguyet v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 554/2021

[2022] HKCA 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 554 OF 2021

(ON APPEAL FROM HCAL NO 1442 OF 2018)

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Before:  Hon Kwan VP and S T Poon J in Court

Date of Judgment:  27 May 2022

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 30 November 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 7 December 2021.

2.The applicant is a national of Vietnam. She is 53 years old. She entered Hong Kong illegally on 12 December 2013 and was arrested by the Immigration Department on 18 March 2014. She was convicted for using a forged identity card and undertaking unauthorized employment on 20 March 2014 and sentenced to 15 months’ imprisonment. She lodged a non-refoulement claim on 29 May 2014 on the basis that she would be harmed or killed by her creditor.

The Director’s decision

3.By a Notice of Decision dated 6 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk.[5]

4.Taking into account the intensity and frequency of the past ill-treatment from the creditor, the Director assessed that the level of risk of harm from the creditor is low. In particular, the creditor had visited the applicant’s home three times but only shouted at the applicant with foul language on his first visit and did not make further threat against her. He only verbally urged her to repay the debt. It was alleged that the creditor did make death threat against the applicant but he let her leave after making the threat. The applicant had never been harmed by the creditor or his men. Thus, the Director held that the applicant had not suffered any previous harm, whether physical or mental, which had attained the requisite minimum level of severity. The Director also found no evidence to show that the applicant has been targeted by the Vietnamese government or that there is any government involvement in the problem faced by the applicant. In addition, the Director considered that the availability of state protection and internal relocation alternatives in Vietnam further lowers or negates the perceived risk.

The Board’s decision

5.The applicant appealed against the Director’s decision to the Board. Having considered the materials and the nature of the arguments, the Board took the view that the applicant’s appeal can be dealt with on paper without holding a hearing, based on the principles laid down in ST v Betty Kwan & Ors^[6].

6.Taking into account the fact that the creditor has never treated the applicant with violence, the Board considered that the creditor does not have real intention to cause harm to the applicant. The Board also assessed that the applicant has not suffered any harm which has attained the requisite minimum level of severity, whether physically or mentally and there is insufficient evidence to show that the risk of harm is real or foreseeable upon her return to Vietnam. The Board further found no evidence to show that the Vietnamese government is unable or unwilling to provide protection to the applicant. As nothing eventful happened during the applicant’s stay in Hai Phong before she left Vietnam, the Board assessed that she would be able to relocate to other cities in Vietnam to avoid the risk of harm from the creditor. Therefore, the Board held that the applicant failed to show that she is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and rejected the appeal on 11 July 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 23 July 2018 to seek leave to apply for judicial review against the decision of the Board. She reiterated the risk of harm she may face in Vietnam in her supporting affirmation and stated that the Board had not responded to her submissions or found evidence to rebut the facts she had asserted.

The judge’s decision

8.DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing. The judge considered that the applicant did not have any valid reason to challenge the Board’s decision. He held that there is no error of law or procedural unfairness in the Board’s findings and concluded that there is no realistic prospect of success in the applicant’s proposed judicial review. Therefore, the judge dismissed the leave application on 30 November 2021.

Grounds of appeal

9.The applicant stated the following grounds of appeal in her Notice of Appeal filed on 7 December 2021:

(1)  the gravity of her circumstances has not been weighed or realized by the Director and the Board; and

(2)  she should be given an opportunity to plead her case properly.

Non-compliance with directions for lodging skeleton argument

10.Directions were given by the Registrar of Civil Appeals on 20 January 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal.

11.The appeal was scheduled to be heard on 22 March 2022. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 22 February 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 2 March 2022 that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

12.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.The applicant was assisted by duty lawyer in the process before the Director and was given sufficient opportunity to plead her case at the interview before the Immigration officer. The Board was entitled to deal with her appeal on paper pursuant to section 12 of Schedule 1A of the Immigration Ordinance (Cap 115). The Board’s decision is well founded and the applicant has failed to adduce evidence to refute the Board’s findings.

15.Moreover, the applicant did not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for her to bring judicial review against the Board’s decision. She failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.As there is no merit in this appeal, we order that the appeal should be dismissed.

The Applicant (Appellant), acting in person