CACV 22/2018
[2018] HKCA 214
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 22 OF 2018
(ON APPEAL FROM HCAL NO. 843 of 2017)
__________________
| BETWEEN |
| | VU VAN KHANH | Applicant |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Respondent |
__________________________
Before: Hon Cheung, Chu and Poon JJA in Court
Date of Judgment: 7 May 2018
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JUDGMENT
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Hon Chu JA (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Chow J (“the Judge”) given on 24 January 2018 refusing him leave to apply for judicial review.
2. The applicant consents to this appeal being determined on paper without an oral hearing.
3. The applicant filed a Notice of Application for Leave to Apply for Judicial Review (Form 86) on 3 November 2017. Other than naming the Director of Immigration (“the Director”) as the putative respondent and asking not to be repatriated, the applicant has not identified in the Form 86 the decision he seeks to judicially review or the grounds for the application. The supporting affirmation merely states that he cannot go back to Vietnam and requires protection in Hong Kong because the Vietnamese government has issued a warrant for his arrest on account of a debt he owed to a moneylender, and he will be jailed and may be killed in prison if he returns to Vietnam. A copy of the warrant is exhibited to the affirmation.
4. On 24 January 2018, the Judge, on a consideration of the papers, refused to give leave to apply for judicial review. His reasons as set out in the CALL-1 Form are:
“The application for leave to apply for judicial review is dismissed on the ground that the Notice of Application for Leave to Apply for Judicial Review (Form 86) dated 3 November 2017 fails to identify (i) any decision made by the Director of Immigration (the Putative Respondent) in respect of which relief is sought, (ii) the grounds on which any relief is sought, and (iii) any relief which the court in the exercise of its jurisdiction in judicial review can grant. The Applicant’s Affirmation filed in support of the application dated 3 November 2017 also does not show that the Director of Immigration has made any relevant decision, whether to repatriate the Applicant or otherwise, which could properly form the subject matter of an application for judicial review.”
5. On 1 February 2018, the applicant issued a Notice of Appeal to appeal against the refusal of leave to apply for judicial review. He served the Notice of Appeal on the Director on the same day. With leave given by the Registrar of Civil Appeals on 26 February 2018, the Director filed an affirmation[1] to provide this Court with information relating to the applicant’s non-refoulement claim, its determination by the Director and the Board’s determination of the applicant’s appeal from the Director’s decisions.
6. The affirmation filed by the putative respondent shows that:
(1) The applicant is a Vietnamese national born in 1984. He went from Vietnam to Shenzhen, and eventually entered Hong Kong illegally on 16 December 2014. He was arrested by the police on 26 December 2014 for theft. On 22 January 2015, he made a non-refoulement protection claim. Under the unified screening mechanism, the Director of Immigration had assessed his claim under all applicable grounds, namely, torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
(2) The applicant’s claim is based on his fear that if he were to return to Vietnam, he would be ill-treated by a moneylender, Mr Nguyen, from whom the applicant had obtained a loan in January 2010 in connection with his fish farm business. According to the applicant, owing to a downturn in his business and a typhoon in mid-2013 that led to the closure of the fish farm, he had since the end of 2011 had difficulties repaying the monthly interest. As a result of his default in repayment and his refusal to carry out some illegal activities for Mr Nguyen as a form of repayment, he was threatened and twice assaulted by Mr Nguyen and his men. The first assault was in September or October 2014 during which the applicant was punched and kicked for 10 to 15 minutes, resulting in bad bruises over the body and a little bleeding in the mouth. No report was made to the police. The second assault took place about a month later, during which the applicant was punched and kicked for 10 to 15 minutes. He sustained injuries to his hand, fingers, foot and ankle and was hospitalised for a few days. Although a report was made to the public security office, the officer refused to accept the case and told the applicant to solve the problem by himself. Fearing for his personal safety, the applicant fled Vietnam.
(3) The applicant had provided the Director with copy of a warrant dated 3 December 2014 issued by the police authority of Vietnam for his arrest for the charge of “abuse of trust to appropriate assets”. The applicant said that after he left his home town, Mr Nguyen made a report to the authority and the warrant was issued because the authority took the view that he had no intention to repay his indebtedness. He said that he would be jailed on returning to Vietnam and may or may not be brought to court.
(4) By a decision dated 12 November 2015 and a supplemental decision dated 24 October 2016, the Director rejected the applicant’s non-refoulement claim.
(5) The applicant appealed to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board’). An oral hearing took place on 13 December 2016.
(6) By a decision dated 9 February 2017, the Board dismissed the applicant’s appeal. For reasons given in the decision, the adjudicator considered that the applicant was not a genuine claimant and further concluded that his case, independently assessed, did not come within the ambit of a torture claim, BOR 2 risk claim, BOR 3 risk claim or a persecution claim. He also noted that the Country of Origin Information which shows that state protection is reasonably in Vietnam and internal relocation is possible, contrary to the applicant’s assertions.
7. In his Notice of Appeal, the applicant stated that he had provided supplementary information to support his application. He reiterated that there is a warrant for his arrest, and his live would be in danger if he was repatriated. He requested the Hong Kong Government to allow him to remain to await the cancellation of the warrant as his family is trying to work out a solution.
8. In his letter to the court dated 14 February 2018 which we will treat as his written submission for the appeal, the applicant reiterated he has to seek protection in Hong Kong because he fears for his safety and also because there is a warrant for his arrest. He added that his girlfriend will take care of his needs and he will not require assistance from the Hong Kong Government for his subsistence.
9. Under Order 53 rule 3 of the Rules of the High Court, Cap. 4A, an applicant seeking leave to apply for judicial review is required to state in the Form 86, inter alia, the relief sought and the grounds on which it is sought. In the present case, the applicant’s Form 86 is seriously deficient. It fails to set out the decision to be challenged, the relief sought and the grounds in support of the application. The supporting affirmation also did not set out any of these information. Nor did it provide any factual information relevant to the intended judicial review. Given that the Form 86 and the applicant’s affirmation were the only materials that were before the Court, the Judge is plainly correct to refuse leave for the reasons he gave.
10. Even in the Notice of Appeal and the written submission, the applicant has not indicated the decision that he seeks to judicially review, the relief sought and the grounds on which his intended judicial review is based. He has also failed to point out any error in the Judge’s decision and reasons. In the circumstances, the applicant’s appeal has no merit and must be dismissed.
11. It is therefore not necessary for us to consider the applicant’s non-refoulement claim, the Director’s decisions to reject the claim or the Board’s dismissal of the applicant’s appeal against the Director’s decisions. For the sake of completeness, however, we would observe that even if the intended judicial review application was directed at the Director’s decisions and/or the Board’s decision, the application for leave would still be refused because no arguable ground for bringing judicial review is disclosed in the Form 86, the supporting affirmation, the Notice of Appeal or the written submission for the appeal.
12. For the reasons set out above, we dismiss the applicant’s appeal. We make no order on the costs of the appeal.
| (Peter Cheung) | (Carlye Chu) | (Jeremy Poon) |
Justice of Appeal
| Justice of Appeal
| Justice of Appeal
|
The applicant, unrepresented, acted in person.
Ms Patricia Lam, Government Counsel, of the Department of Justice for the putative respondent.
[1] Affirmation of Cheng Pak Chui filed on 5 March 2018.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383and Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
[4] 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 and Article 7 of ICCPR.
[5] 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 and its 1967 Protocol.