Re Nguyen Khac Chuan

CACV 328/2022, [2023] HKCA 957

On Appeal From [2022] HKCFI 2317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 328 OF 2022

(ON APPEAL FROM HCAL NO 3536 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in the Form CALL-1 dated 29 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 2317).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 14 December 2018 (“the Board’s Decision”), allowing the applicant’s request to withdraw his appeal against the decision of the Director of Immigration (“the Director”)  dated 8 December 2016 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.On 17 August 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

4.By way of a Request for Dismissal of Appeal dated 12 June 2023, the applicant requested to withdraw the present appeal.

5.Given his request to withdraw his appeal, we dismiss the applicant’s appeal on this basis alone.  In any event, we would also dismiss this appeal for lack of merits as explained below.

Background

6.The applicant is a national of Vietnam.  He last arrived in Hong Kong illegally on 9 March 2016 and was arrested by police on 14 March 2016.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if returned to Vietnam, he would be harmed or killed by his creditor over his unpaid debts.  Factual details of his non-refoulement claim were summarised by the Deputy Judge at [1] - [4] of the Leave Decision.

7.As noted by the Deputy Judge at [5] - [8] of the Leave Decision, by his decision dated 8 December 2016, the Director dismissed his non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In essence, having assessed the evidence, the Director considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.  Subsequently, the applicant lodged an appeal to the Board on 20 December 2016.  On 30 November 2018, he wrote to the Director requesting to withdraw his non-refoulement claims and his appeal to the Board as his problem in Vietnam had already been resolved and it was safe for him to return to his home country.  Pursuant to his request, the Board wrote to the applicant on 14 December 2018 directing that his appeal had accordingly been withdrawn and disposed of and that the Director’s decision was confirmed.

The Leave Decision

8.On 28 November 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review out of time against the Board’s Decision.  By that time, he was already more than eight months late in making the application.  The applicant also failed to provide any ground of review in his Form 86.  In a letter attached to his supporting affirmation, he only alleged that he would be killed or harmed if he returned to Vietnam owing to his unpaid debts.

9.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [12] - [18] of the Leave Decision:

“12. In the Applicant’s case, a delay of more than 8 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation either in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge other than a regurgitation of his claim of fear of being harmed or killed by his creditor over his outstanding debts, but without any explanation as to why in 2018 when he applied to withdraw his appeal that he claimed to have already resolved his problem and that it was safe for him to return to Vietnam, nor is there any evidence that his withdrawal is somehow invalid in that he might have been misled into making such request as there is simply no such suggestion from him in his Form or affirmation at all. As such I am unable to see any basis to challenge the Board’s decision to withdraw and dismiss his appeal at his own request as a result of a deliberate and informed decision on his part, nor do I find any merits in his intended application in the circumstances: see Re Das Purnima Rani [2019] HKCA 669.

14. 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.

15. The fact is that it was also established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized private monetary dispute between him and his creditor without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam, and that it is not unreasonable or unsafe for him to relocate to other part of the country without any risk of being located, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17. Furthermore, the Applicant recently on 16 June 2022 filed an affirmation requesting to withdraw his application as all his problems in Vietnam have been settled and that it is safe for him to return to his home country.

18.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, and upon his latest confirmation that his problems have been resolved and that it is safe for him to return to his home country, I accordingly dismiss his leave application.”

This Appeal

10.On 17 August 2022, the applicant filed a Notice of Appeal and a supporting affirmation to appeal against the Leave Decision.  In his Notice of Appeal, the applicant repeated that he should be given an opportunity to plead his case properly and that internal relocation was completely unfeasible since he was not an active person and his health was not good.  He also alleged that it would be very dangerous for him to go back to his home country as his creditor or gangsters may find out his new residence.  He further alleged that his life would be seriously threatened or that he might be killed as the creditors in Vietnam were cruel and violent and they disregarded the law.  In his supporting affirmation, he only claimed that he understood that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.

11.Contrary to the directions of the court dated 17 August 2022, the applicant failed to lodge any written submissions in support of the present appeal.

12.As mentioned above, by a Request for Dismissal of Appeal dated 12 June 2023, the applicant requested to withdraw the present appeal.

Discussion

13.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

15.At the outset, the allegations made by the applicant in his Notice of Appeal and supporting affirmation are bare, vague and general without any evidence or specific particulars in support. Accordingly, they do not constitute proper grounds of appeal.  More importantly, the applicant did not specify any error in the Leave Decision. General assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].

16.Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

17.In the present case, the Board disposed of the applicant’s appeal pursuant to his own request to withdraw his appeal, having been satisfied that the request was made voluntarily fully knowing the consequence of the withdrawal, and on the basis of the applicant’s own statement that the problems were resolved in his home country and it would be safe for him to return.  As correctly noted by the Deputy Judge, there is simply no basis to challenge the Board’s Decision to dismiss his appeal on this ground.  The Deputy Judge in any event further examined the Director’s Decision which was confirmed by the Board and found that the decision was not tainted by any public law errors.  As mentioned, the applicant has not shown why the Deputy Judge was wrong in the Leave Decision.

18.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person