RE DINH HUU TIEN

CACV 537/2021

[2023] HKCA 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 537 OF 2021

(ON APPEAL FROM HCAL NO. 147 OF 2019)

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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 17 May 2022, this Court handed down judgment ([2022] HKCA 699)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 24 November 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 14 November 2022, the applicant filed a notice of motion supported by an affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant did not lodge written submissions.

3.  Having considered the applicant’s documents, 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 in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484)  provides that 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.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by over five months.  The applicant did not explain in the supporting affirmation his delay.  The affirmation stated the applicant’s belief that there is a good ground of appeal which was not considered when applying for leave for judicial review, but no such ground was identified.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO 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.

8.  The notice of motion contains seven paragraphs.  In summary, the applicant stated that he will be killed by gangsters hired by his (former)  customers for failing to return them their money.  Internal relocation was not possible.  The gangsters have a wide network and can find the applicant easily.  The Director did not consider the applicant’s rights under the law in force.  In short, the applicant’s complaints are factual findings that were made against him.

9.  We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They 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.

10.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.

Applicant, unrepresented, acting in person

CACV 537/2021

[2022] HKCA 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 537 OF 2021

(ON APPEAL FROM HCAL NO. 147 OF 2019)

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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 dated 24 November 2021 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 10 January 2019.

2.  Despite the directions of the Registrar of Civil Appeals of 5 January 2022, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have his right to have an oral hearing waived, and have elected to have his appeal disposed of on paper.  The hearing that was fixed for 15 March 2022 was accordingly vacated.  We will deal with the present application on paper based on the documents filed by the applicant.

2)  Background

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally by way of the Mainland on 8 August 2015, and raised a non-refoulement claim two days later.  The applicant’s non-refoulement claim was on the basis that if he returned he would be harmed or killed by a person named Cuong who was a triad member hired by his former customers.  The customers claimed that he had taken part in a business which defrauded them of their money.

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [3] of the CALL-1 Form.

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 14 February 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 3 and BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicant appealed/petitioned against the Director’s Decisions to the Board.  After a hearing held on 22 November 2018, the Board dismissed the applicant’s appeal against the Director’s decisions on 10 January 2019.

7.  The Board held that the evidence of the applicant was incredible and his account was rejected as untruthful.  The Board did not accept that the applicant had participated in the business as alleged.  The applicant had provided no evidence to support his alleged physical injuries.  There was no real risk that the applicant will be subjected to ill-treatment or arbitrary deprivation of life if refouled.  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 held that the applicant provided no grounds for seeking relief.  He merely repeated his claim of fear of being killed if refouled without any proper ground for the intended challenge.  No error of law or procedural unfairness was found in either the Director or the Board’s decision.

6)  Grounds of appeal

10.  The applicant stated in his notice of appeal that the gravity of his circumstances were not weighed by the Director or the Board.  He stated he should be given opportunity to plead his case.  In his supporting affirmation, he provided no proper grounds of appeal.

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 applicant has not provided any proper ground for his appeal.

13.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person