Mac the Luc v. Torture Claims Appeal Board

CACV 7/2022

[2022] HKCA 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 7 OF 2022

(ON APPEAL FROM HCAL NO 1500 OF 2021)

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Before: Hon Au and Chow JJA in Court

Date of Written Submissions: 13 January 2022

Date of Judgment: 25 July 2022

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JUDGMENT

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

1.On 5 January 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 December 2021 (“the Order”)refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 October 2021. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 June 2021.

BACKGROUND

2.The Applicant is a national of Vietnam.  He entered Hong Kong illegally in August 2020, and was arrested by the police on 12 August 2020.  He lodged a non-refoulement claim on 11 May 2021, alleging that if refouled, he would be harmed or killed by his creditor.  Details of the Applicant’s claim were summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 29 June 2021, 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 21 October 2021, the Board dismissed Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.The Board found discrepancies and implausibility in the Applicant’s evidence and doubted the credibility of his claim in the absence of reliable or documentary evidence to corroborate his bare assertions.  The Board also found that state and police protection would be available to the Applicant upon his return to Vietnam, and reasonable internal relocation was an option open to him.

THE JUDGE’S DECISION

6.On 29 October 2021, the Applicant filed his Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 30 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“9. On 29 October 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim and that they were not reasonable or fair as required by the Wednesbury test as his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) that the Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his non-refoulement claim as the applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4) that the Director failed to consider or give sufficient weight to the COI which supported the Applicant’s case that the police in his home country would not be able to protect and ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5) that the Director failed to attain high standard of fairness in failing to consider the fact that corruption and incompetency of the police and the administration in the Applicant’s home country which various human rights organizations have complied reports that stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(6) that the Adjudicator was procedurally improper and unfair when assessing whether to accept explanation provided by the Applicant and unreasonably required him to respond to questions which he was not in a position to offer any response;

(7) that the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively persecution by the state; and

(8) that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and hence the decision is irrational.

10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of his claim, or in what way would the concept of state acquiescence or extra-judicial killing be relevant to his case which was even on his own case at the highest a private localized monetary claim between him and his creditor without any official or state involvement. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as he also failed to attend the hearing of his application without any explanation, I do not find any of them reasonably arguable for his intended challenge.

11. 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.

12. 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 his 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.”

THIS APPEAL

8.In his Notice of Appeal dated 5 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 contended in his grounds of appeal that the gravity of his circumstances had not been weighed or realized by the Board and the Director when considering his non-refoulement claim, and he should be given an opportunity to plead his case properly.

10.In his supporting affirmation dated 5 January 2022, 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 his 7-page written submissions dated 13 January 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that he had not yet agreed on a repayment plan with his creditor and requested that his deportation be postponed.  He further complained that the Board did not act in a procedurally fair manner in dealing with his application and failed to assess his 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 30 December 2021, or raised any viable ground of appealin his Notice of Appeal or affirmation or written submissions.

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

The Applicant, acting in person