Case Detail

CACV 535/2021

[2023] HKCA 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 535 OF 2021

(ON APPEAL FROM HCAL NO 1270 OF 2018)

________________________

BETWEEN
	Trinh Thi Ly	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and S T Poon J in Court

Date of Judgment:

24 March 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 27 May 2022 ([2022] HKCA 738). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge K W Lung dated 22 November 2021 ([2021] HKCFI 3447) refusing to grant leave for the applicant to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 September 2022 that the applicant shall lodge written submissions on or before 11 October 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. She entered Hong Kong illegally on 14 December 2014. She surrendered to the Immigration Department and lodged a non-refoulement claim on 16 December 2014 on the basis that she would be harmed or killed by her creditors.

Grounds of appeal

4. The applicant stated her grounds of appeal in the Notice of Motion and affirmation filed on 27 September 2022 which may be summarised as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board.
(2)  If the applicant returns to Vietnam, her life will be seriously threatened because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.
(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.
(4)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.
(5)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

Analysis and disposition

5. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

6. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

7. The applicant was late for more than 3 months in filing the Notice of Motion. As she did not provide any explanation for the delay in her affirmation, there is no good ground for the court to grant extension of time to file her Notice of Motion.

8. In any event, the applicant’s grounds are not supported by evidence. She has not pointed out any error in the Court of Appeal’s decision in dismissing her appeal, nor did she identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9. For the above reasons, we dismiss the Notice of Motion filed on 27 September 2022.

(Susan Kwan)
Vice President

(S T Poon)
Judge of the Court of
First Instance

The Applicant (Appellant), acting in person

CACV 535/2021

[2022] HKCA 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 535 OF 2021

(ON APPEAL FROM HCAL NO 1270 OF 2018)

________________________

BETWEEN
	Trinh Thi Ly	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and S T Poon J in Court

Date of Judgment: 27 May 2022

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 22 November 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 1 December 2021.

2. The applicant is a national of Vietnam. She is 37 years old. She entered Hong Kong illegally on 14 December 2014. She surrendered to the Immigration Department and lodged a non-refoulement claim on 16 December 2014 on the basis that she would be harmed or killed by her creditors.

The Director’s decision

3. By a Notice of Decision dated 9 March 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk.[5]

4. Taking into account the low intensity and frequency of past ill-treatment from the creditors, the Director assessed that the level of risk of harm from the creditors is low. In particular, the creditors had only made verbal threats and the applicant had never been physically harmed in the incidents. There is also no evidence to show that the applicant had to seek physical or mental treatment because of the incidents. The Director therefore considered that the harm, whether physical or mental, inflicted upon the applicant by the creditors had not attained the requisite minimum level of severity. Moreover, the Director found that the applicant’s problem is entirely a private dispute without any involvement of the Vietnamese government. The Director concluded that the availability of state protection and internal relocation alternatives in Vietnam further lowers or negates the perceived risk.

The Board’s decision

5. The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 9 May 2018. As the applicant’s case is unsupported by evidence, and is contradictory and inconsistent, the Board did not accept her case that she had borrowed money from the moneylenders or that she had been threatened by them in her home village in Vietnam. The Board held that the applicant failed to show that she is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and rejected the appeal on 21 May 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 4 July 2018 to seek leave to apply for judicial review against the decision of the Board. She only reiterated the risk of harm she may face in Vietnam in her supporting affirmation without putting forward any grounds for her intended challenge against the Board’s decision.

The judge’s decision

7. DHCJ K W Lung considered the leave application on paper[6]. The judge found that the Board had conducted a rather comprehensive assessment of the applicant’s evidence and had given reasons for its findings. The judge considered that the applicant does not have any valid reason to challenge the Board’s decision. He held that there is no error of law or procedural unfairness in the Board’s findings and concluded that there is no realistic prospect of success in the applicant’s proposed judicial review. Therefore, the judge dismissed the leave application on 22 November 2021.

Grounds of appeal

8. The applicant stated the following grounds of appeal in her Notice of Appeal filed on 1 December 2021:

(1) the gravity of her circumstances has not been weighed or realized by the Director and the Board; and
(2) she should be given an opportunity to plead her case properly.

Non-compliance with directions for lodging skeleton argument

9. Directions were given by the Registrar of Civil Appeals on 20 January 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal.

10. The appeal was scheduled to be heard on 22 March 2022. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 22 February 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 2 March 2022 that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

11. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

12. 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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13. The applicant’s grounds in this appeal are just bare assertions without particulars, elaboration or evidence in support. She was given opportunities to plead her case at the interview and oral hearing before the Immigration officer and the Board. The Director and the Board had given detailed analysis and explanation for their findings and their decisions are well founded. In particular, the applicant did not adduce any evidence to refute the Board’s findings.

14. The applicant has not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for her to bring judicial review against the Board’s decision. She failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15. As there is no merit in this appeal, we make an order that the appeal be dismissed.

(Susan Kwan)
Vice President

(S T Poon)
Judge of the Court of
First Instance

The Applicant (Appellant), acting in person

[1] [2021] HKCFI 3447

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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

[4] This refers to 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).

[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.

[6] The applicant did not request for an oral hearing in the Form 86 or supporting affirmation. In §3 of Call-1 form, the judge stated that the applicant “requested an oral hearing” and “Pursuant to Order 53 rule 3(3) of the Rules of the High Court, a hearing has therefore been fixed for her.” This statement would appear to be made in error. The Court record showed that no hearing was fixed for the leave application and the first page of call-1 form and the order made by the judge indicated that the judge had considered the application on paper.

TRINH THI LY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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