Do Hai Nam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 255/2023, [2023] HKCA 1323

On Appeal From [2023] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2023

(ON APPEAL FROM HCAL NO 982 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 8 August 2023[1] refusing 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 (“Board”) dated 11 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant declared that he was born in Moscow, Russia in 1994 and his family returned to live in Vietnam when he was about age 1 to 2.  Based on the available evidence, the Board found the Applicant to be a Vietnam national and its analysis was set out at [86] to [87] of the Board’s decision.  He claimed to have arrived in Dongxing, China on the strength of his Vietnamese passport and then travelled to Shenzhen to stay for around two weeks before entering Hong Kong illegally on 15 July 2014.  On 22 July 2014, he surrendered to the Immigration Department and submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on the same date.  His claim for non-refoulement protection dated 6 February 2018 was received by the Immigration Department on 7 February 2018.  The applicant’s claim was made on the basis that if he returned to Vietnam, the police would harm or kill him due to his participation in a protest against local authority over land dispute.  The factual background of the applicant’s claim was set out at [10] to [21] of the Board’s decision.

3.By notice of decision dated 28 February 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 14 January 2019, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant submitted a late addition to his claim that was not previously disclosed to the Immigration Department, which was the fear of harm from triad members hired by the authorities in his village.  In favour of the applicant’s credibility, the Board accepted, inter alia, that his parents’ land was identified for resumption and was in fact claimed, he and his parents were not satisfied with the quantum of compensation offered for the land, he participated in a protest as claimed, he suffered some mistreatment by the police at the protest and summonses against him were issued by the police.  However, the Board found that the claim about involvement of triad members to be vague and lacking credible detail. 

5.The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam. It found there was in fact no real risk of harm if the applicant returned to Vietnam, because his parents’ land had already been resumed in 2014 and there would not be any continuing motivation by police to continue to target the applicant as claimed.  In addition, the applicant informed the Board that his parents, as owners of the land, and sister were never harmed by the police since the occurrence of the land dispute and the applicant was able to depart from Vietnam using a passport in his own name without difficulty, which would indicate he was not a person of ongoing adverse interest to police or authorities.  Moreover, the relevant land tribunals in Vietnam were an available avenue if the applicant or his parents were dissatisfied with the failure to receive adequate compensation for sale of land.  As to the police incident, the Board found, on the basis of available country of origin information, that the applicant could seek assistance from police complaints authorities if he wished to do so.  As the Board found there was not a real risk of harm of any kind now or in the foreseeable future, it did not consider or make any findings in relation to internal relocation or availability of police protection in Vietnam. 

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 11 March 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.On 10 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

8.The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 8 August 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15. 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.’

16. The Board had assessed his evidence and accepted the events he had told the Board. However, having consulted the COI, the Board did not accept his allegations against the police or the developer, who had acquired the land in any event. The grounds set out in paragraph 12, supra are not valid to challenge the Board’s Decision.

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.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

9.On 14 August 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be beaten or even killed by the Vietnamese police or authorities if he returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam and that the Director failed to consider his human rights.

10.The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.  

11.The applicant has not lodged any written submissions.

Discussion

12.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a person of adverse interest to the Vietnamese authorities.  Therefore, the Board concluded that it was not necessary to consider or make further findings in relation to internal relocation. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. As for the ground relating to human rights advanced, it consists of mere general and bald assertions regarding the decision of the Director without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any reviewable error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.