Tran Van Tuan v. Torture Claims Appeal Board

CACV 210/2021

[2022] HKCA 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 210 OF 2021

(ON APPEAL FROM HCAL NO 1085 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  29 June 2021

Date of Judgment:  27 May 2022

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J U D G M E N T

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

Introduction

1.On 20 April 2021, DHCJ Bruno Chan (“the 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 (“the Board”)  dated 21 March 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 9 November 2015 and 28 October 2016 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 30 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

3.The applicant is a national of Vietnam.  He had repeatedly entered Hong Kong illegally since 2006.  He said that in 2007, he was unable to meet repayment obligations and his creditor Nguyen Minh Chien (“NMC”)  threatened and sent men to assault him.  As a result, the applicant entered Hong Kong illegally on repeated attempts but was repatriated.  On his 5^th and last attempt on 5 December 2012, he was arrested by police the same day.  He was referred to the Immigration Department for investigation and it was only then that he raised a non-refoulement claim by way of written representations dated 4 February, 13 March and 8 May 2014 alleging that if refouled, he would be harmed or even killed by NMC and his men for failing to repay his loan. The factual background of this case was succinctly summarized by the Judge in [2] – [6] of the Form CALL-1 ([2021] HKCFI 1020).

4.By a Notice of Decision dated 9 November 2015 and Notice of Further Decision dated 28 October 2016, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.The applicant appealed the Director’s decisions to the Board.  He attended an oral hearing on 23 January 2018 and by its decision dated 21 March 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  For the reasons set out in [17] to [34], the Board found that the applicant’s evidence was vague and unreliable (eg as to the date of the alleged assault, his inability to name the hospital he went to, the lack of a medical report, the date of his alleged report to the police, the inability to identify the officer who allegedly solicited a bribe or the amount of the alleged bribe solicited etc), and that he had inexplicably delayed lodging his non-refoulement claim until he came to Hong Kong for the 5^th time and only after his arrest by the police, which seriously undermined his credibility.  Even on his own account, he did not sustain any serious injury that had attained the minimum level of severity that would amount to torture.  Further, his claim only involved collection of a private debt and there was no evidence to suggest any state involvement; his allegation against police inaction was a bare assertion without any corroborative evidence.  In any event, internal relocation is a reasonable option as it was not accepted that NMC would spend resources and manpower to locate the applicant all over the country.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.On 13 June 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he did not provide any ground for relief and merely repeated his claim that he would face the risk of being killed by his creditor in Vietnam.   

7.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] – [15] of the JR Decision:

“12. On 13 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would risk being killed by his creditor in Vietnam and that he disagreed with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13. 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.

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

15. 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 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.”

Appeal to this Court

8.On 30 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“the gravity of my circumstances have noted [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. She [I] should be given an opportunity to plead my case properly.”

9.In compliance with the Court’s directions of 16 June 2021, the applicant lodged his written submissions on 29 June 2021. 

10.In his written submissions, he repeated the background of his claim.  He further claimed that the decision disposed of his torture claim and made him liable to be removed, and it entails significant implications for his substantial right not to be subject to torture and his right to non-refoulement protection.  He quoted some cases that high standards of fairness applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he submitted that he had not raised grounds of appeal in his application as he did not have legal representation.

Legal principles

11.In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.The applicant did not in his Notice of Appeal and written submissions provide any proper ground of appeal against the Judge’s decision, or identify any specific errors, or any other specific grounds for reversing the Judge’s decision.

13.The grounds of appeal set out in the written submissions are vague and general assertions without particulars or elaboration, and they are thus not valid grounds of appeal: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.As a matter of law, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that a non-refoulement protection claimant is entitled to an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 

15.Therefore, his complaint of lack of legal representation is not a valid ground of appeal nor an excuse for his failure to provide proper ground of appeal against the Judge’s decision.

16.In the present case, contrary to the applicant’s submissions that the Board had failed to assess his creditability, the Board had rejected his claim on the issue of credibility for his vague evidence, for which examples had been set out in the Decision, and his inexplicable delay in lodging his non-refoulement claim only upon his 5^th illegal entry to Hong Kong.  His alleged problem is private and personal in nature without any state instigation or involvement and he did not sustain any serious injury that attained the minimum level of severity to amount to torture.  His claim had failed on all applicable grounds.  The Board was entitled to make the findings as it did and the Judge rightly found there was no valid public law ground to intervene.

17.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

18.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, acting in person