RE LE VIET DUY

CACV 275/2021

[2022] HKCA 1034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 275 OF 2021

(ON APPEAL FROM HCAL NO. 2671 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 26 January 2022, this Court handed down judgment ([2022] HKCA 146) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 5 October 2018 who refused his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 4 February 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 17 February 2022.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out at [3] in our judgment.  We shall not repeat them here.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)(Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The applicant’s grounds of appeal stated in the notice of motion, which appears to be copied from some proforma seen often in these type of proceedings, can be summarised as follows :

1)  Dissatisfaction with the decision of this Court.

2)  His life would be in danger if he is returned to Vietnam.

3)  The Immigration Department was wrong in reaching its decision in disregarding his human rights.

7.  As for the applicant’s written submissions, which again appears to be copied from some proforma, can be summarised as follows :

1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved.

2)  The adjudicator acted in a procedurally unfair manner in dealing with his applications without properly assessing the credibility of the applicants.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

9.  We further do not see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, accordingly, we dismiss the notice of motion dated 4 February 2022.

CACV 275/2021

[2022] HKCA 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 275 OF 2021

(ON APPEAL FROM HCAL NO. 2671 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 5 October 2018.

2.  Despite the directions of the Registrar of Civil Appeals of 14 July 2021 from the High Court to the applicant, the applicant failed to lodge skeleton argument by the stipulated time.  The applicant has consented to the appeal to be disposed of on paper without an oral hearing and accordingly we will deal with this application on paper.

2)  Background

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally and was arrested.  He then raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor Hoang Thi Yen and her underlings because of his default in loan repayment.  He also claimed that he is suffering from AIDS.

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [6] of the CALL-1 Form.

3)  The Director’s Decisions  

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 22 June 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  (‘BOR 3’)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decisions to the Board on 29 June 2018.  After a hearing held on 17 September 2018, the Board dismissed the applicant’s appeal against the Director’s decisions on 5 October 2018.

7.  The Board held that it was implausible that the applicant would take on onerous debt.  He was unable to show that the Vietnam authorities would not help him if he asked.  There was no evidence to support the applicant’s claim that he was suffering from AIDS.  Irrespective of whether the applicant was or was not suffering from AIDS, even if he was refouled back to Vietnam where medical treatment may not match Hong Kong, there was no real risk of him being ill-treated to engage BOR 3.  The evidence available does not satisfy the definition of torture under the statutory provision.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

8.  The applicant filed a Form 86 with supporting affirmation before the Judge.

9.  The Judge assessed the applicant’s documents and held that no grounds were contained in his Form 86, and in his supporting affirmation the applicant merely stated that the decision was unlawful and unreasonable as the Board rejected his claims without providing any details, particulars or elaboration of how it was so.  There was no error of law to be found on the Board’s decision.

6)  Grounds of appeal

10.  The applicant stated in his notice of appeal that his circumstances have not been weighed, and that he was not given a chance to plead his case properly. 

7)  Our view

11.  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement claims cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In our view, there are no merits in the applicant’s appeal. Consideration of evidential matters is the task of the Board.  The grounds of appeal are vague and without detail.  The Judge had provided reasons for refusing the application.  We see no error in the Judge’s decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person