Re Nguyen Van Nhuan
Read the full judgment text of CACV 142/2022 on BabelCite. This Court of Appeal judgment was delivered on 21 July 2022.
1. This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 31 March 2022 [1] refusing 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 1 March 2019. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 8 September 2016 and 15 August 2017 rejecting the applicant’s non-refoulement
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CACV 142/2022 [2022] HKCA 1051 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 142 OF 2022 (ON APPEAL FROM HCAL NO. 754 of 2019) ____________________
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________________ JUDGMENT ________________ Hon Barnes J (giving the Judgment of the Court): Introduction 1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 31 March 2022[1] refusing 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 1 March 2019. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 8 September 2016 and 15 August 2017 rejecting the applicant’s non-refoulement claim. 2.Since the judgment below, the applicant’s notice of appeal and his supporting affirmation were all in English, we have issued this judgment in English even though the Board’s decision was in Chinese. If the applicant so requires, arrangements can be made for this judgment to be orally interpreted to him in Chinese after being handed down. Background 3.The applicant is a Vietnamese national. On 23 May 2014 he surrendered himself to the Immigration Department, and raised his non-refoulement claim on 26 May 2014. 4.The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by the local government of Kien Thuy rural district in Hai Phong Municipality. According to the applicant, the local government sent gangsters to threaten, and later assault him with weapons after he refused to accept less compensation than was due after the government prematurely terminated a licence for him and/or his ex-wife to extract marine sand. The factual background was summarized at paragraphs 9 - 18 of the Board’s decision. 5.By notices of decision dated 8 September 2016 and 15 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered BOR 3 risk[2], persecution risk[3], and torture risk[4]; the latter covered BOR 2 risk[5]. 6.The applicant appealed to the Board against the Director’s decision. Oral hearings were held on 27 August, 3 October and 7 November 2018, during which the applicant gave oral testimony and was represented a lawyer provided by the Duty Lawyer Service. The Board found that the applicant’s evidence was not credible, due to gaps and inconsistencies in his evidence on key facts. 7.Such gaps and inconsistencies in his key facts include the timing of when he entered into a business partnership with his ex-wife and when she obtained the marine sand extraction licence (ie before or after their divorce), and how he obtained her consent to apply for a change of land use in order to trade in marine sand, when at the relevant time, he was no longer in contact with her. The Board was also skeptical of whether the applicant ever had a proper licence to extract marine sand, when the land use conditions stated that the land may only be used for growing rice and reeds. The applicant stated at the hearing that the government would only grant marine sand extraction licences to organizations that can ensure that such activity would not result in environmental pollution. The Board raised such concerns with the applicant at the hearing, however he was unable to provide satisfactory explanations. Thus the Board found that the applicant was not an honest witness, that his evidence was not credible, and the Board rejected his evidence. 8.The Board also considered that the applicant’s failure to produce the documentation or deed of assignment of the licence (referred to as 「轉讓書」in the Board decision which was in Chinese) to his ex-wife (which documentation or deed was according to the applicant was recognized by the local government), to be cause for skepticism[6]. 9.Due to its adverse finding on the applicant’s credibility, the Board found that there was no real risk of harm in the event of refoulement. In any event, the Board also found that effective state protection was available. Therefore, on 1 March 2019 the Board dismissed the applicant’s appeal on all the applicable grounds. Decision of the court below 10.On 18 March 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his Form 86 application form, the applicant raised the following grounds for judicial review:
11.Following consideration of the application on papers only, on 31 March 2022 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [18] of the Form CALL-1 as follows:
Appeal to this Court 12.On 14 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal are that the gravity of his circumstances have not been weighed or realized by the Board or the Director, and that he should be given an opportunity to plead his case properly. 13.However, the applicant did not provide any particulars in support of his grounds of appeal. 14.The Registrar of Civil Appeals directed on 18 May 2022 that the applicant must lodge his skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers. 15.The applicant has failed to lodge any skeleton argument as directed. The hearing date is vacated and this appeal is disposed of on the papers without a hearing. Legal principles 16.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 [7] ; Re Md Shohel Sheak [8] ; and Re Limbu Birkhaman [9]. 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’s decision, 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 17.As mentioned earlier, the applicant did not provide any particulars in support of his grounds of appeal in his Notice of Appeal, or identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [10]; Re Aziz Nasir [11]; Re Kharsu Numan [12]; Re Salim Ahmed [13]. 18.As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant, and as there are no grounds that point to any error by the Judge, the appeal should be dismissed. 19.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding as to the applicant’s credibility. Thus the Board found that there was no real risk of harm in the event of refoulement. The Board also found that effective state protection was available. Such findings are within the province of the Board. The Court will not interfere with such assessments unless they are reversible on public law grounds. 20.In his affirmation filed in support of his Form 86, the applicant exhibited, inter alia, copies of the contractual and licensing documentation referred to in paragraph 9 of his Form 86, together with translations in Chinese. One of the documents, issued by the local government in Kien Thuy and dated 22 September 2010, refers to the applicant as being authorized by his ex-wife to manage the engineering works. Another document (reference number: 11/PABT) refers to his ex-wife as the land user (土地使用者) and to the applicant as the manager or steward (管理者). The remainder of the contractual or licensing documentation is not addressed to or does not refer to the applicant’s name, however. While the documentation might suggest that the applicant was authorized to manage the works on the land, they did not however indicate whether he controlled and ran his ex-wife’s company. 21.As for the matters in paragraph 10 of the Form 86, it is not clear how the documents summoning the applicant to a court hearing in Vietnam have any bearing on proving that he was assaulted. In any event, the matters raised in paragraphs 9 and 10 of the Form 86 do not engage with the Board’s main reasons for its assessment of credibility as discussed above. 22.Other than at paragraph 9 of his Form 86, the applicant has not raised any other potential errors or concerns as regards the Board’s assessment of credibility. In any event, whether or not the applicant was a credible witness. 23.Whilst the applicant enclosed various documents in support of his application before the Judge, alleging failure on the part of the Adjudicator to properly assess his claim. As correctly said by the Judge: the role of the Judge sitting in the Court of First Instance was supervisory, ensuring that the Board complied with the public law requirements. The Board found the applicant not to be a credible witness. A fact-finding exercise clearly within the province of the Adjudicator, who had given reasons for his findings. In any event, the availability of effective state protection is fatal to his claim. There are no valid public law grounds for reversing or interfering with the Board’s decision to reject the claim. 24.Having considered the materials before us, we are of the view that the Judge was right to refuse leave. There are no reasonably arguable grounds to challenge his decision. 25.For these reasons, we are of the view that this application has no merits and accordingly this appeal is dismissed.
The applicant, unrepresented, acted in person. [1] [2022] HKCFI 856, HCAL 754/2019 [2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115). [5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [6] Paragraph 31 of the Board decision [7] [2018] HKCA 524 at paragraph 14 [8] [2018] HKCA 714 at paragraph 13 [9] [2019] HKCA 50 at paragraph 11 |
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