RE HOANG KIM DUNG

CACV 334/2022, [2024] HKCA 681

On Appeal From [2022] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2022

(ON APPEAL FROM HCAL NO. 2143 OF 2018)

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JUDGMENT

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

I.  Leave to appeal to the Court of Final Appeal

1.  On 28 April 2023, this Court (Poon CJHC and Cheung JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 9 August 2022 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

3.  Pursuant to the directions of the Registrar of Civil Appeals dated 27 June 2023, the applicant was to lodge and serve on or before 11 July 2023 written submissions failing which she will be deemed to have abandoned her right to rely on written submissions and the matter will be considered by this Court based on the available materials.  The applicant has not lodged or served written submission by the stipulated deadline.

4.  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.

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 now applies, by a notice of motion and affirmation filed on 27 June 2023, for leave to appeal against our judgment to the Court of Final Appeal out of time by almost one month.  The applicant did not provide any explanation for the delay.  The applicant stated in her notice of motion in summary the following points :

1)  It was unsatisfactory that the Court of Appeal ruled that the applicant had no chance of success;

2)  If the applicant is refouled to Vietnam she will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong most of them being cruel and violent;

3)  The applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle.  The applicant’s health is not good.  There is no guarantee that the applicant can adapt to the new place;

4)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find the applicant; and

5)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law.

7.  The applicant stated in her affirmation in summary the following points :

1)  The Court of Appeal’s decision was reached unfairly without allowing the applicant an opportunity to clarify; and

2)  A good ground of appeal was not considered at the stage of the application for leave to apply for judicial review.

II.  Our view

8.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

9.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance.  Nor is there any such question apparent to us from the matters she has raised in her documents. 

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

11.  For these reasons, the notice of motion dated 27 June 2023 is dismissed.

CACV 334/2022, [2023] HKCA 603

On Appeal From [2022] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2022

(ON APPEAL FROM HCAL NO. 2143 OF 2018)

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J U D G M E N T

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

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge K W Lung of 9 August 2022.  The Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 23 November 2018, which dismissed her appeal against the decision of the Director of Immigration (the ‘Director’) dated 20 March 2017 rejecting her claim for non‑refoulement protection under all applicable grounds.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  Despite the directions from the Registrar of Civil Appeals to the applicant dated 19 August 2022, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court will deal with this appeal on paper based on the available documents. 

II.  Background

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally in September 2015 and made a non‑refoulement claim subsequently.  She raised a non‑refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by creditors from whom she had borrowed money.

4.  The background facts have been summarised by the Judge at [3­‑6] of the Judge’s Decision.

III.  The Director’s Decision

5.  The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), 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 (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 2 October 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.  The Board found many notable discrepancies in her evidence.  The Board did not accept the applicant’s allegation of being harassed by her creditors for repayment of money.  The applicant’s allegations during the hearing did not match with what was written in her non-refoulement claim form.  All that the applicant could say was that she forgot whenever the Board pointed out any inconsistency in her evidence.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to Vietnam.  No credence could be attached to the applicant’s evidence.

V.  Decision of the Judge

8.  The applicant filed a Form 86 and a supporting affirmation on 26 September 2018. She complained that as she had borrowed from creditors to open a fashion shop and the interest was too high, she could not afford to repay and was threatened by the creditors.

9.  The applicant did not request an oral hearing.  The Judge dealt with her application on paper.

10.  The Judge held that the applicant has provided no reasonable grounds to overturn the decisions of the Director and the Board. 

11.  The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

12.  In the Notice of Appeal filed on 19 August 2022, the applicant stated that the gravity of her circumstances have not been realized or weighed.  She complained that internal relocation was not possible.  She complained that she will be harmed or killed by Vietnam creditors if she returned to Vietnam.

13.  In the supporting affirmation filed on 19 August 2022, the applicant simply stated that she had a good ground of appeal which was not properly considered at the stage of applying for judicial review.

VII.   Our view

14.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

15.  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 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 Country of Origin Information 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.

16.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.