Case Detail

CACV 550/2021

[2022] HKCA 1711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2021

(ON APPEAL FROM HCAL NO 1248 OF 2018)

________________________

BETWEEN
	Dinh Chinh Bo	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:

23 November 2022

________________________

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 (Kwan VP and S T Poon J) handed down on 27 May 2022 ([2022] HKCA 741). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge K W Lung dated 24 November 2021 ([2021] HKCFI 3523) refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 June 2022 that the applicant shall lodge written submissions on or before 23 June 2022. It was further directed that the present 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. He last entered Hong Kong illegally on 21 December 2013 and was arrested by the police on 24 December 2013. He lodged a non-refoulement claim on 29 December 2013 on the basis that he would be harmed or killed by his creditor. His claim was assessed on all applicable grounds under the unified screening mechanism.

Grounds of appeal

4. In the Notice of Motion filed on 9 June 2022, the applicant stated the following grounds of appeal:

(1)  If the applicant returns to Vietnam, his 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.
(2)  The Director of Immigration (“the Director”) suggested that the applicant could to relocate to another place but it is completely unfeasible and it is possible for the creditor and gangster to find out the applicant’s new residence;
(3)  The Director 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.

Analysis and disposition

5. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

6. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal. Besides, he failed to 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).

7. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 9 June 2022.

(Susan Kwan)
Vice President

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

The Applicant (Appellant), acting in person

CACV 550/2021

[2022] HKCA 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2021

(ON APPEAL FROM HCAL NO 1248 OF 2018)

________________________

BETWEEN
	Dinh Chinh Bo	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 24 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 his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 6 December 2021.

2. The applicant is a national of Vietnam. He is 32 years old. He last entered Hong Kong illegally on 21 December 2013 and was arrested by the police on 24 December 2013. He lodged a non-refoulement claim on 29 December 2013 on the basis that he would be harmed or killed by his creditor. After the commencement of unified screening mechanism, his claim was assessed on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

The Director’s decision

3. By a Notice of Decision dated 30 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds.

4. Taking into account the intensity and frequency of past ill-treatment from the creditor, the Director assessed that the level of risk of harm from the creditor is low. The Director considered there is no evidence to show that the harm inflicted upon the applicant by the creditor had attained the requisite minimum level of severity. The Director also held that the creditor and his men do not have genuine intention to kill the applicant, as indicated by the fact that they only made verbal threats when they visited the applicant’s home after the applicant had been discharged from hospital but did not cause any physical harm upon the applicant. Moreover, the Director found that the applicant’s problem is entirely a private dispute without any involvement of the Vietnamese government. The Director considered that the deficiency of a single police station could not represent the whole police force or the Vietnamese government and assessed that reasonable state protection and internal relocation alternatives are available to the applicant in Vietnam which would further lower or negate the perceived risk.

The Board’s decision

5. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 8 June 2018. The Board considered that the creditor had no intention to kill the applicant as reflected from the fact that the creditor and/or his men did not attack the applicant further when the creditor came to chase for repayment on two occasions after the applicant returned home from hospital in November 2013. Although the evidence suggested that the applicant was attacked once, the Board found that the applicant’s injuries were not serious at all. Besides, the Board found that the applicant’s problem is purely a private dispute and not on account of race, religion, nationality, political opinion or membership of a particular social group. There is also no evidence to show that the creditor is in any way related to the authorities. The Board noted that the Vietnamese police did take up the applicant’s complaint and there is no evidence to show that the police was unwilling to look into the case. The Board also assessed there should be no difficulty for the applicant to relocate to other cities in Vietnam to avoid his creditor. Therefore, the Board rejected the appeal on 20 June 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 3 July 2018 to seek leave to apply for judicial review against the decision of the Board. He only reiterated the risk of harm he may face in Vietnam without putting forward any grounds for his intended challenge against the Board’s decision.

The judge’s decision

7. As the applicant did not request for an oral hearing, DHCJ K W Lung considered his leave application on paper. The judge 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 24 November 2021.

Grounds of appeal

8. The applicant stated the following grounds of appeal in his Notice of Appeal filed on 6 December 2021:

(1) the gravity of his circumstances has not been weighed or realized by the Director and the Board; and
(2) he should be given an opportunity to plead his 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, he shall be deemed to waive his 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. He was given opportunities to plead his case at the interview and the 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.

14. Furthermore, the applicant did not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for him to bring judicial review against the Board’s decision. He 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. There being no merits 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 3523

[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.

DINH CHINH BO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)