Bui Thi Ha v. Torture Claims Appeal Board / Non-refoulemnt Claims Petition Office

CACV 48/2022

[2023] HKCA 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2022

(ON APPEAL FROM HCAL NO 2002 OF 2018)

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J U D G M E N T

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

Introduction

1. On 14 January 2022, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 14 September 2018.   In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 18 April 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds. 

2. On 24 January 2022, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, a letter was lodged with the Court expressing the applicant’s consent to have this appeal disposed of on paper without an oral hearing. 

3. Pursuant to the directions of Registrar of Civil Appeals made on 24 January 2022, the applicant should lodge her written submissions on or before 7 February 2022.   She failed to do so.   The Registrar further directed that in the event the applicant failed to lodge her written submissions by the deadline, she will be deemed to have abandoned her right to rely on written submissions. 

4. As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing. 

Background

5. The applicant is a national of Vietnam.   She entered Hong Kong illegally on 17 July 2015 and was arrested by the police on 8 October 2015.   She lodged a non-refoulement claim on 16 November 2015 alleging that if refouled, she would be harmed or killed by her creditor as she had defaulted in repaying a loan.   The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 156). 

6. By a Notice of Decision dated 1 September 2016 and a Notice of Further Decision dated 18 April 2017, the Director assessed the applicant’s claim on grounds relating to BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her. 

7. The applicant appealed the Director’s decisions to the Board.   She attended an oral hearing on 8 March and 9 August 2018, and by its decision dated 14 September 2018, the Board dismissed the appeal.  For the reasons set out at [18] – [35], the Board rejected the applicant’s case on the issue of credibility and found her an untruthful witness.   The applicant did not raise her claim until she was arrested by the police for overstaying in Hong Kong and evidence about her loan was vague and unconvincing.   The Board did not find that there is a real risk of harm or deprivation of life if she were to be refouled to her home country.  Relevant country of origin information (“COI”) suggested that there is reasonable state protection [48] – [57] and in any event, internal relocation is a viable option [80] – [85].   For the aforesaid reasons, the Board rejected her non-refoulement claim on all applicable grounds. 

Decision of the court below

8. On 21 September 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.   In her supporting affirmation, she reiterated the factual background of her claim and complained that the Board erred in its finding that she would not be harmed or killed if refouled. 

9. The applicant did not request an oral hearing and the Judge disposed of the application on paper.   After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] – [17] of the JR Decision:

“DISCUSSION

12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. 

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1). 

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 failed to raise 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. ”

Appeal to this Court

10. On 24 January 2022, the applicant filed her Notice of Appeal against the Judge’s decision.   She did not advance any ground of appeal save for repeating the factual background of her claim. 

Legal principles

11. In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].   For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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 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.   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. 

(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, or for running arguments which could and should have been raised but not raised before the judge.   In the determination of 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 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, the appeal should be dismissed.   An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.  

Discussion

12. The applicant only reiterated the factual basis of her non-refoulement claim without identifying any arguable error of law by the Judge, or any relevant matter that he had failed to consider, or any other reason why the refusal of leave was wrong.   Nor can we discern any such matters.   General assertions of fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28]. 

13. Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.   We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review. 

Order

14. For the above reasons, this appeal is dismissed. 

The applicant, unrepresented, acting in person