Re Nguyen Thi Ha

CACV 564/2024, [2025] HKCA 619

On Appeal From [2024] HKCFI 3548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 564 OF 2024

(ON APPEAL FROM HCAL NO 445 OF 2021)

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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 the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 December 2024 ([2024] HKCFI 3548)(“the Leave Decision”), refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 5 March 2021 (“the Board’s Decision”), whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 26 November 2020 (“the Director’s Decision”) refusing her non‑refoulement claim.

2.On 24 December 2024, 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 30 December 2015.  She surrendered to the Immigration Department on 7 January 2016, when she raised a non-refoulement claim for protection on the basis that, if refouled, she would be harmed or killed by her creditor over her unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [1] ‑ [4] of the Leave Decision.

4.By 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 against the Director’s Decision to the Board on 8 December 2020.  The applicant attended an oral hearing before the Board on 16 February 2021.  By the Board’s Decision, the Board dismissed her appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [8] of the Leave Decision:

“8. In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of having borrowed a loan for her seafood business or of being in fear of harm from her creditor over her unpaid debts that caused her to leave her country to come to Hong Kong to seek protection, that even if her such account were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.On 29 March 2021, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No ground of challenge was advanced in her Form 86 or supporting affirmation.  On 22 October 2024, the applicant attended an oral hearing before the Judge and a Vietnamese interpreter was present to provide language assistance.

7.By the Leave Decision, the Judge refused her application for leave to apply for judicial review.  His reasons were set out at [9] ‑ [14] of the Leave Decision:

“9.  On 29 March 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor was she able to put forward any proper ground for her intended challenge at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.  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.

11.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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.

12.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.”

THIS APPEAL

8.In her Notice of Appeal filed on 24 December 2024, the applicant mainly complained that, if refouled, her life would be seriously threatened by her creditor and local gangsters as it might be possible for them to locate her.  She also claimed that internal relocation would be completely unfeasible as she was not an active person and there would be no guarantee that she would be able to adapt to the new place.  She also complained that the Immigration Department failed to consider her human rights under various legislations but failed to particularise her complaint.

9.In her supporting affirmation filed on 24 December 2024, the applicant claimed that she understood that there “was a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”. Again, the applicant failed to particularise what the alleged ground was.

10.Contrary to the directions of the Registrar of Civil Appeals dated 24 December 2024, the applicant failed to lodge any written submissions.

DISCUSSION

11.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 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.In our view, the applicant’s appeal has no substance.  At the outset, her assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she failed to identify any error with specific particulars against the Leave Decision.  Accordingly, her assertions are not valid grounds of appeal.

13.In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

14.For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.