Re Nguyen Van Duong

CACV 163/2022, [2024] HKCA 266

On Appeal From [2022] HKCFI 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2022

(ON APPEAL FROM HCAL NO 150 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 14 April 2022, by which the Deputy Judge refused his application for leave to apply for judicial review ([2022] HKCFI 1098) (“the Leave Decision”).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 26 April 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.

Background

4.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 8 August 2016 and surrendered to the Immigration Department on 8 February 2017.  On 2 March 2017, he lodged a non‑refoulement claim on the basis that if refouled, he would be harmed or killed by his parents’ creditor over their outstanding debts and / or by the Vietnamese police for his alleged killing of one of the men sent by his parents’ creditor during an attack on his family.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [9] of the Leave Decision.

5.By the Director’s Decision, the Director’s rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director doubted the credibility of the applicant’s account of events and considered that his non-refoulement claim was not substantiated.

6.The applicant then appealed against the Director’s Decision to the Board.  On 27 September 2018, the applicant attended an oral hearing before the Board and gave evidence.  In essence, the Board found that there were numerous inconsistencies and discrepancies in the applicant’s evidence, such as, on the alleged background of the loan incurred by his parents, his account of events on his escape from the scene after his alleged killing of an armed gangster sent by the creditor, his knowledge about his murder conviction without trial, his explanations on delay in seeking non-refoulement protection after his arrival in Hong Kong.  The Board found his evidence to be unreliable and incredible.  On the basis of the Country of Origin information (“COI”), the Board also found that even if his alleged killing during the gangsters’ attack on his family was to be believed, there would be legitimate defence available at trial and further, an appeal mechanism in Vietnam for convicted persons. In any event, the Board considered that the monetary dispute between his parents and their creditor was private in nature and that in the absence of any state involvement, state protection and internal relocation would be available to him.  Accordingly, as the applicant’s claim failed on all applicable grounds, the Board dismissed his appeal and confirmed the Director’s Decision.

The Leave Decision

7.On 16 January 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  The applicant raised the following grounds of review against the Board’s Decision (referred to as Grounds (1) to (3) by the Deputy Judge in the Leave Decision):

(1)  The Board acted unreasonably and irrationally by cherry-picking or taking into account irrelevant or immaterial evidence in rejecting his claim, and failing to properly take into account material evidence that favour his case, such as the documentary evidence produced by him on the Vietnamese police’s Wanted Person Notice and Criminal Fugitive List issued against him.

(2)  The Board’s reliance of COI which found the Vietnamese police corrupt but also efficient in assessing his claim was contradictory, unreasonable and irrational.

(3)  The Board wrongly underestimated his risk of being harmed or killed upon refoulement given the lack of help or protection available to him from the Vietnamese police.

8.By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [15] ‑ [22] of the Leave Decision:

“15.  For the Applicant’s complaint under Ground (1) of the Board’s rejection of his claim of being wanted by the Vietnamese police despite having produced documentary evidence such as the police wanted lists issued against him as unreasonable and irrational, the Adjudicator did give a full and proper analysis and reasoning in §§96 ‑ 109 of the decision with the benefit of having heard his oral evidence and answers to questions raised of the claim during his appeal hearing as well as actual examination of those documents available before the Board in the hearing bundle, and similar to the full and careful analysis given by the Director in his decision, I do not find any error of law or irrationality or procedural unfairness in the Applicant’s process before the Board or in its decision, and on the basis of the facts and evidence relied on by the Applicant and analyzed by the Adjudicator, I agree that the Board was perfectly entitled to make those findings as it did and to reject the credibility of his claim of fear of being harmed by the Vietnamese authorities. As such I do not find any prospect of success in this complaint of the Applicant for his intended challenge.

16. As for his complaint under Ground (2) that it was contradictory for the Board to find in the COI that the Vietnamese police as both corrupt and efficient, as evidenced in §§71 ‑ 85 of the decision, the Adjudicator did properly find concerns about police corruption in Vietnam but that on the basis of recent reforms and efforts made by the government to fight corruptions and to improve competency and efficiency not just in the police but also in the legal and judicial system that the Board did correctly arrive at a proper and balanced assessment that the Applicant would receive due process of the law if indeed he is to be arrested and prosecuted by the authorities upon his return to Vietnam. In the premises I do not find any contradiction in such assessment of the Board, nor do I find this ground reasonably arguable.

17. For his complaint under Ground (3) of the Board underestimating the risk that he would face from the loan shark upon his return to Vietnam due to the lack of help or protection from the local police in the past, the fact is that his claim had been rejected by the Board essentially on its adverse finding against his credibility including his assertions of his parents and family being assaulted on some ten occasions but were all ignored by the police which were simply not supported by any reliable evidence or the relevant COI other than his bare uncorroborated assertions that I do not find this ground reasonably arguable either.

18. 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.

19. In the Applicant’s case, as already noted above the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

20. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true from his parents’ creditor is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, 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.

21. In the premises and 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.

22. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

9.On 26 April 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he asked for an order to set aside the Leave Decision and relied on the following grounds:

“1. The [Deputy Judge] was wrong in fact in holding and accepting the irrational findings of facts by the Director and the Board that [his] refoulement claim is not credible.

2. The [Deputy Judge] was wrong in fact in holding and accepting the irrational findings of facts by the Director and the Board that [he is] not a man of reliability and credibility.

3. The [Deputy Judge] was wrong in law in holding and accepting the error of law of the Director and the Board rejecting my fulfillment of the definitions of Torture Risk, BOR2 Risk, BOR3 Risk, and Persecution Risk.

4. The [Deputy Judge] was wrong in law in holding and accepting the Wednesbury unreasonableness of the conclusion of the Director and the Board to reject [his] refoulement claim.” (sic)

10.Pursuant to the directions of the Registrar of Civil Appeals dated 26 April 2022, the applicant lodged his written submissions on 6 May 2022.  In those submissions, he complained that the Director and the Board cherry-picked information and materials favourable to them, but failed to sufficiently consider his individual circumstances, to properly assess all the relevant COI of Vietnam which are relevant and favourable to his claim, or to achieve the high standards of fairness required in assessing his claim.  He contended that the Director and the Board, followed by the Deputy Judge, erred in finding his claim to be incredible.  He also reiterated the alleged factual basis to establish that there is a genuine and personal risk of being harmed or killed by the loan-shark gangsters upon his refoulement.  He essentially repeated the grounds of appeal as set out in his Notice of Appeal.

Discussion

11.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].

12.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.

13.At the outset, all the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. In essence, his complaints in the present appeal are mainly directed at the Board and the Director and not the Deputy Judge in the Leave Decision.  In this regard, it is trite that the Director’s Decision was not susceptible to judicial review after the Board had reached a decision: Re Moshsin Ali [2018] HKCA 549 at [45].  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  Accordingly, his submissions are plainly not proper grounds of appeal.

14.More importantly, as repeatedly emphasized by the Court of Appeal, it is well-established that assessment of evidence, COI materials 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: 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].

15.As correctly noted by the Deputy Judge in the Leave Decision at [13], the Board rejected the applicant’s claim essentially on the Board’s adverse finding on the applicant’s credibility after its thorough and detailed analysis and reasoning after hearing the applicant’s oral evidence and answers to the questions raised during the hearing as well as the actual examination of the documents available.  We agree with the Deputy Judge that having reviewed the Board’s Decision with rigorous examination and anxious scrutiny, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board: see the Leave Decision at [21].  We see no basis to interfere with the Leave Decision.

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

The applicant acting in person