Re v. Thi Phuong

CACV 378/2023, [2024] HKCA 540

On Appeal From [2023] HKCFI 2740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 378 OF 2023

(ON APPEAL FROM HCAL NO 1134 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 9 November 2023 ([2023] HKCFI 2740)  (“the Leave Decision”)  refusing to grant her leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 25 April 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 23 October 2017.

2.On 20 November 2023, the applicant indicated her 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

3.The applicant is a national of Vietnam.  She entered Hong Kong illegally on 27 November 2015.  On 30 November 2015, she surrendered to the Immigration Department.  On the date of surrender, she lodged a non-refoulement claim on the basis of a risk of harm from her creditor due to an outstanding debt.  Details of the applicant’s claim were summarised by the Judge at [4] - [5] of the Leave Decision.

4.By a Notice of Decision dated 23 October 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.The applicant appealed the Director’s Decision to the Board.  On 25 April 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [9] - [11] of the Leave Decision:

“9. The Board first considered the country of origin information (‘COI’)  [7]-[30]. It then recapped the applicant’s claim and personal background [31]-[45]. Having considered the applicant’s evidence, the Board made the following findings. At the outset, the Board found that, while there might be threats uttered against the applicant, the creditors had no real intention to execute the death threats [46]-[55]. Meanwhile, the Board noted that the COI indicated that the government implemented measures to combat the illegal debt-collecting activities and that the applicant was able to live trouble free in cities other than her home village [56]-[57]. Taking these circumstances into account, the Board found that, even if the creditors intended to inflict ill-treatments, their actions would be restrained and would not reach the minimum level of severity [58]-[59].

10. Further, the Board considered her claim under the individual grounds. It found that the applicant could receive sufficient state protection [64]; that the injuries sustained by the applicant or any future ill-treatments, if any, would not attain a minimum level of severity [69]-[73]; that Ah Lam and Ah Yue were not public officials or someone acting in official capacities [79]-[80]; that the applicant’s claimed fear was from her incapacity to repay the loan, which did not fall into the classes of protected people under the persecution ground [91]; and that, in any event, state protection and internal relocation were both available to the applicant [99]-[106].

11.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.”

THE JUDGE’S DECISION

6.On 29 April 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of intended review was given by the applicant in her Form 86.  In her supporting affirmation, she repeated the factual basis of her non-refoulement claim and that she life would be under danger if refouled.

7.As the applicant did not request for an oral hearing, the Judge considered her application on paper.  On 9 November 2023, the Judge gave his decision refusing to grant the applicant leave to apply for judicial review, for the following reasons:

“14. 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).

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

16. 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.’

17. The Board accepted the applicant’s evidence. It had, nevertheless, came to a conclusion that state protection and internal relocation were available to the applicant. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 held:

‘31. … … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. …’

18. The applicant has raised no valid ground to challenge the Board’s Decision. 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.

19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

THIS APPEAL

8.In her Notice of Appeal filed on 20 November 2023, the applicant reiterated that her life would be seriously threatened as creditors and gangsters might harm or kill her.  She further claimed that as she was not an active person and internal relocation would not be feasible. She also claimed that the Immigration Department failed to consider her human rights under various legislations.  In her supporting affirmation dated 20 November 2023, she only vaguely stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.  However, she did not specify what that said ground was.

9.Contrary to the directions of the Registrar of Civil Appeals dated 20 November 2023, the applicant did not lodge any written submissions.

DISCUSSION

10.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

11.Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.In our view, her appeal is a non-starter.  She fails to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  All her allegations are vague, bare and general without any specific particulars or evidence in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of her allegations are proper grounds of appeal.  Her appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.The applicant’s appeal against the Leave Decision has no merit and is dismissed.

The applicant acting in person