Le Van Truyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 1/2025, [2025] HKCA 624

On Appeal From [2024] HKCFI 3663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2025

(ON APPEAL FROM HCAL NO 2279 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 24 December 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 August 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 December 2017.

BACKGROUND

2.The Applicant is a national of Vietnam.  He claimed that he last entered Hong Kong illegally on 27 September 2014.  On 6 October 2014, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by (i) his creditor (Vu Van Tan) because of an outstanding debt, and (ii) the police in Vietnam, who laid false charges against him by reason of his failure to pay bribes to the police and a government authority.  Details of the Applicant’s claim have been summarised by the Judge at §6 of the CALL-1 Form. 

3.By a Notice of Decision dated 28 December 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.The Applicant appealed the Director’s Decision to the Board.  On 2 August 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §9 of the CALL-1 Form, as follows:

“…After having considered the principles in relation to the assessment of evidence, the Board found that the [Applicant’s] evidence was unreliable and incredible with numerous material inconsistencies and discrepancies between his evidence and the statements he provided in his refoulement (sic) claim. The Board concluded that the [Applicant’s] evidence was not credible. The Board found that the summons and the arrest warrant issued by the police were forged documents. Notwithstanding the Board’s rejection of the [Applicant’s] claim on credibility, it went on to consider the [Country of Origin Information (‘COI’)], and found that state protection and the option of internal relocation were available. The Board concluded that the [Applicant] had failed to demonstrate that he should be entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.”

THE JUDGE’S DECISION

5.On 9 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, the Applicant stated that he did not agree with the Board’s Decision and repeated his claimed fear of harm from his creditor in his home country.

6.On 24 December 2024, the Judge gave her decision refusing to grant leave to apply for judicial review, for the following reasons:

“[11] The [Applicant’s] Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that his life would be in danger if refouled because he was insolvent. At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application. The [Applicant] stated that he would be arrested upon his return to Vietnam under the existing arrest warrant. He also informed this court that he had formed a new relationship with another refoulement (sic) claimant who gave birth to his son in 2017 out of wed-lock. He therefore wished to remain in Hong Kong to be with his son.

[12] It is plain that in neither the [Applicant’s] submissions nor in the Leave Application was the [Applicant] able to specify on what basis the Board was said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

[13] The Board’s Decision was arrived at with the benefit of a hearing in which the [Applicant] was able to clarify matters raised by the Board. After examining the [Applicant’s] evidence in great detail, the Board found that the [Applicant’s] was not a credible witness, there was state protection available, and that internal relocation would also be viable. The Board’s findings of the [Applicant’s] case in Vietnam was made with reference to the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

[14] In the Leave Application, the [Applicant] has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the [Applicant’s] issue with commonsense and high standard of fairness…

[15] For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave…”

THIS APPEAL

7.In his Notice of Appeal filed on 2 January 2025, the Applicant repeats his claimed fear of harm in his home country upon refoulement because he is wanted by the Vietnamese government, and asks to be allowed to stay in Hong Kong.

8.In his affirmation of the same date, the Applicant states that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he fails to identify what that ground might be.  He also states that he was informed that the Director and the Board “did not see the grounds to reverse their decisions”, without giving any further explanation or particulars.

9.On 2 January 2025, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 2 January 2025.

DISCUSSION

11.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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.Further, the assessment of evidence, country of origin information, 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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.The Applicant has failed 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 Order. 

14.The Applicant’s appeal has no merit, and is dismissed.

The Applicant, acting in person

[1] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.