Case Detail

CACV 399/2022, [2024] HKCA 37

On Appeal From [2023] HKCA 1121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 399 OF 2022

(ON APPEAL FROM HCAL NO 635 OF 2019)

_______________

RE:

LE VAN LOC alias LE VAN HIEN

Applicant

_______________

Before:

Hon Cheung and Au JJA in Court

Date of Judgment:

16 January 2024

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1. By a judgment dated 4 October 2023 ([2023] HKCA 1121) (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 29 September 2022 ([2022] HKCFI 2995) (“the Decision”), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2. On 10 October 2023, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3. The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

5. In his Notice of Motion, the applicant alleges that his life would be in danger if he returned to Vietnam and that creditors and gangsters in Vietnam are cruel and violent and are willing to kill people to satisfy their anger and ferocity. He also alleges that internal relocation is unfeasible because there will be many difficulties and obstacles that he will have to face in the new location and that his health is not good as he is not an active person. He further says that the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus make it quite possible for those creditor and gangsters to find out his new address. He further alleges that the Immigration Department did not consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

6. Contrary to Practice Direction 2.1, the applicant failed to lodge any written submissions.

7. In our view, the applicant’s application is plainly devoid of merits. His assertions are all vague, bare and unsupported by any specific particular or evidence. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. His allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, of which we had already considered and rejected: see [9] ‑ [15] of the Judgment. More importantly, he did not identify any specific error in the Judgment. It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. Clearly, his assertions do not constitute proper grounds of appeal.

8. Further and in any event, even taking it at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

9. Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10. For these reasons, the Notice of Motion is dismissed.

(Peter Cheung)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 399/2022, [2023] HKCA 1121

On Appeal From [2022] HKCFI 2995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 399 OF 2022

(ON APPEAL FROM HCAL NO 635 OF 2019)

____________________

RE:

LE VAN LOC alias LE VAN HIEN

Applicant

____________________

Before:

Hon Cheung and Au JJA in Court

Date of Judgment:

4 October 2023

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 29 September 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2995).

2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 April 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3. On 5 October 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper. Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4. The applicant is a national of Vietnam. He surrendered to the Immigration Department on 4 June 2015. He claimed to have entered Mainland China from Vietnam on 28 February 2015 and illegally entered Hong Kong on 2 March 2015. By the written representation dated 25 May 2017, he raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5. By their decisions respectively dated 30 April 2018 and 21 February 2019, the Director and the Board dismissed his non‑refoulement claim on all applicable grounds including torture risk^{^[1]}, BOR2 risk[2], BOR3 risk^{^[3]} and persecution risk^{^[4]}. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.

6. In particular, in dismissing his appeal against the Director’s Decision, the Board found that the applicant’s alleged harm fell short of the requisite level of severity. In any event, the Board held that the alleged dispute was private in nature without any state involvement, and further noted that state protection and internal relocation were both available to the applicant. Accordingly, the Board found that the applicant failed to substantiate on all applicable grounds. The Board thus dismissed his appeal.

The Leave Decision

7. On 6 March 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in his Form 86. In his supporting affirmation, the applicant only asserted that he would be harmed or killed by his creditor or his subordinates given his failure to repay the debt. As the applicant did not request an oral hearing, the Deputy Judge considered and determined his application on paper.

8. By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. In essence, the Deputy Judge did not find any error of law or procedural unfairness in the Board’s Decision, and held that the findings of the Board were neither Wednesbury unreasonable nor irrational. The Deputy Judge thus found that the applicant failed to show that he had any realistic prospect of success in his proposed judicial review.

The Appeal

9. On 5 October 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision. In his Notice of Appeal, he stated that the gangsters and creditors disregarded the law and that he would be tortured, beaten or even killed. He also claimed that it would be infeasible for him to internally relocate as he was not an active person and might be disadvantaged in the labour market. He further claimed that it would be very dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus.

10. Contrary to the directions of the Registrar of Civil Appeals dated 5 October 2022, the applicant failed to lodge any written submissions.

Discussion

11. The relevant legal principles governing appeals in non‑refoulement cases are set out 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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13. In our view, the applicant’s allegations have no substance. It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision. His complaints are also all general and vague without specific particulars or evidence in support. They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Leave Decision. This appeal must fail on this alone.

14. Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].

15. For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

(Peter Cheung)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the 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.

[4] 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.

RE LE VAN LOC alias LE VAN HIEN

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