Ha Minh Thoai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 45/2022

[2022] HKCA 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2022

(ON APPEAL FROM HCAL NO 1312 OF 2018)

________________________

________________________

____________________

JUDGMENT

____________________

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

1.On 21 January 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 14 January 2022 (“the Order”)refusing to grant her leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 July 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 November 2016.

BACKGROUND

2.The Applicant is a national of Vietnam.  She entered Hong Kong illegally on 8 June 2015, and surrendered to the Immigration Department on 10 June 2015.  She lodged a non-refoulement claim on the same day, alleging that if refouled, she would be harmed or killed by her creditors and his followers.Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 3 November 2016, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board.  On 3 July 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.The Board considered the fact that the Applicant did not seek non-refoulement protection as soon as she landed in Hong Kong was damaging to her credibility.  Further, the Board identified several inconsistencies in material aspects of the Applicant’s evidence for which no satisfactory explanation was offered.  The Board concluded that the Applicant’s account of events was untruthful, and in any event, reasonable state protection was available to the Applicant and internal relocation was open to her.

THE JUDGE’S DECISION

6.On 6 July 2018, the Applicant filed her Form 86 against the Board’s Decision.

7.On 14 January 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … 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 (and the Director). 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.’

15. The applicant has not raised any valid ground to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

8.In her Notice of Appeal dated 21 January 2022, the Applicant sought to set aside the Order and requested for an order that leave to apply judicial review be granted.

9.The Applicant stated in her grounds of appeal that the gravity of her circumstances had not been weighed or realised by the Board and the Director when considering her non-refoulement claim, and she should be given an opportunity to plead her case properly.

10.In her supporting affirmation dated the same date, the Applicant stated that there was a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.

11.In her 7-page written submissions dated 26 January 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  She claimed that she had not yet agreed on a repayment plan with her creditor and requested that her deportation be postponed.  She further complained that the Board did not act in a procedurally fair manner in dealing with her application, and failed to assess her credibility correctly.

DISCUSSION

12.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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 14 January 2022, and has failed to raise any viable ground of appeal against the Judge’s decision in her Notice of Appeal or affirmation or written submissions.

14.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] 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.