Bui Thi Phan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 260/2022

[2022] HKCA 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260 OF 2022

(ON APPEAL FROM HCAL NO 494 OF 2019)

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Before:  Hon G Lam and Chow JJA in Court

Date of Judgment:  3 October 2022

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J U D G M E N T

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

1.On 30 June 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 23 June 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 June 2018.

BACKGROUND

2.The Applicant is a national of Vietnam. She entered Hong Kong illegally on 26 November 2012, and was arrested on 2 December 2012. On 24 March 2014, she lodged a non-refoulement claim, alleging that, if refouled, she would be harmed or killed by triad members engaged by a bank and/or a loan shark (NVL) for failing to repay her loans owed to them. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1687).

3.By a Notice of Decision dated 28 June 2018, 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 14 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] The Board considered the applicant’s evidence to be inconsistent, implausible and inherently unreliable. For example, the applicant provided inconsistent accounts as to the purpose of the second loan [57]. She based her evidence about being chased by triad members on hearsay information [58]-[59]. Her claim that she was injured by NVL’s wife was not presented before the Director and the Board refused to accept her explanation for the omission [61]. The Board also disbelieved the applicant’s evidence that NVL would advertise his intention to commit murder on national television [62]. It further considered the applicant’s evidence to be contradictory as, on one hand, she claimed to cease contact with her family and, on the other hand, she claimed to learn the threats from her mother [63]. These inconsistencies had greatly undermined the applicant’s credibility.

[10] Thus, the Board, while accepting that the applicant might have taken out the loans, rejected the applicant’s claim that she was ever threatened or harmed by the Bank or loan shark [68]. In any event, having considered the country of origin information, the Board found that state protection and internal relocation were both viable alternatives for the applicant [84]-[94]. For the above reasons, the Board rejected her claim and dismissed her appeal.”

THE JUDGE’S DECISION

5.On 20 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

6.On 23 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[16] The applicant’s grounds in support of her application are not valid grounds because the Board was entitled to take into consideration of the inconsistencies of her evidence in its evaluation of the credibility of her evidence. Whether the inconsistencies are unimportant is for the adjudicator to assess. There is no concrete evidence to show that the adjudicator was unfair or prejudicial or being influenced by other factors than the evidence to form his opinions and conclusion. From the Board’s Decision, the issue of medical examination for her injuries was [n]ever brought up for the Board’s consideration.

[17] 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.”

THIS APPEAL

7.In her Notice of Appeal dated 30 June 2022, the Applicant put forward the following grounds of appeal:

(1)  The gravity of her circumstances had not been weighed or realised by the Director and the Board. She should be given an opportunity to plead her case properly.

(2)  The Director’s suggestion that she could move to live in another location in Vietnam was completely unfeasible for various reasons.

(3)  If she returned to Vietnam, her life would be seriously threatened. She would be tortured, beaten or even killed, because most gangsters in Vietnam were cruel and violent. They disregarded the law and were willing to kill people to satisfy their anger and ferocity.

8.In her supporting affirmation made on 30 June 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”, but failed to identify what that ground might be.

9.The Applicant has failed to lodge written submissions with the Court, contrary to the directions given by the Registrar of Civil Appeals on 30 June 2022.

DISCUSSION

10.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.The Applicant’s complaint that she should be given an opportunity to plead her case properly, implying that she was denied such opportunity, is without substance. She did not request for an oral hearing of the leave application pursuant to Order 53, rule 3(3) of the Rules of the High Court (Cap 4A). Accordingly, the Judge was entitled to deal with the application on paper.

13.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 23 June 2022, and has failed to raise any viable ground of appeal against the Order.

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

The Applicant, acting in person