Re Nguyen Van Dien

CACV 171/2022

[2022] HKCA 1606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 2022

(ON APPEAL FROM HCAL NO. 408 OF 2019)

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J U D G M E N T

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

I.  The appeal

1.This is the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’) dated 21 April 2022, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 11 February 2019.

2.The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.The applicant is a national of Vietnam.  He is a repeated offender of illegal entry into Hong Kong.  On 6 October 2014 he again entered Hong Kong illegally and on 8 October 2014 he raised his non-refoulement claim on the basis that he would be harmed or killed by his creditors due to the outstanding business loan for his fish and shrimp farm in Vietnam which he is unable to repay.

4.The background and details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the CALL‑1 Form dated 21 April 2022 (published as [2022] HKCFI 1135) (the ‘CALL‑1 Form’).

III.  The Director’s Decision

5.The Director of Immigration (the ‘Director’) decided against the applicant’s claim on 21 December 2016.  The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of her absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’) being violated including right to life under Article 2 (‘BOR 2 Risk’) and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.The Director assessed the leave of risk of harm from the applicant’s creditor to be low and in any event, it was a private matter with no involvement of the state.  The Director also considered that there was reasonable internal relocation within Vietnam and police protection was available to the applicant.

IV.  The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 26 November 2018.  On 11 February 2019, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.The Board concurred with the Director and assessed the level of risk of harm to be low.  The Board also held similar view that the dispute of the applicant and his creditors were private in nature and state/police protection was available.  The Board confirmed that internal relocation was not unreasonable for the applicant if he is returned to Vietnam.

V.      The Judge’s Decision

9.On 13 February 2019, the applicant filed a Form 86 for judicial review.

10.As set out in [9] to [13] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in decisions of both the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

11.The applicant filed a notice of appeal on 28 April 2022 with a supporting affirmation and written submissions on 10 May 2022.  In the notice of appeal, the applicant stated that the gravity of his circumstances had not been weighed or realized by the Board and the Director when considering and he should be given an opportunity to plead his case properly.  In his supporting affirmation, he stated that there was a ‘good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review’.

12.As for the applicant’s written submissions, it repeats the background of his case and goes on to produce some general principles of law relating to non‑refoulement claims without providing any elaboration or their relevance.

VII.   Our view

13.We will repeat the approach of this Court in dealing with cases of this nature :

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 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 the 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 (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 their decisions.

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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.In our view, there is no merit in the applicant’s appeal.  The Judge had duly considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application.  The applicant has failed to identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision in his notice of appeal or affirmation or written submissions. Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person