RE TRAN THI NGUYEN

CACV 442/2022 , [2024] HKCA 806

On Appeal From [2022] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 442 OF 2022

(ON APPEAL FROM HCAL NO. 2370 OF 2018)

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DECISION

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

I.  Leave to appeal to the Court of Final Appeal

1.  On 2 February 2024, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 1 November 2022 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 8 February 2024, for leave to appeal against our decision to the Court of Final Appeal.  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 applicant stated in her notice of motion the following in summary :

1)  Our ruling was unsatisfactory;

2)  The applicant cannot return to Vietnam because if she does she will be tortured and even killed;

3)  The applicant cannot relocate to another part of her home country because her health is not good and she will face difficulties if she returns;

4)  The applicant cannot relocate because her creditors have a nationwide network and can locate her; and

5)  The Director did not consider her human rights under the law.

5.  Pursuant to the directions of the Registrar of Civil Appeals also dated 8 February 2024, the applicant was to lodge and serve on or before 22 February 2024 written submissions.  The applicant has not lodged or served written submission by the stipulated deadline.

II.  Our view

6.  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.

7.  The matters stated by the applicant in her notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  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 notice of motion. 

8.  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

9.  For these reasons, the notice of motion dated 8 February 2024 is dismissed.

CACV 442/2022, [2024] HKCA 129

On Appeal From [2022] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 442 OF 2022

(ON APPEAL FROM HCAL NO. 2370 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) :

1) The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 1 November 2022 in which he refused to grant leave to her to apply for judicial review.

2.  By written confirmation of the applicant dated 7 November 2022, the applicant consented to this appeal being dealt with on paper. The applicant failed to lodge the skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 7 November 2022. We would deal with this appeal on paper.

2) Background

3.  The applicant is a national of Vietnam. In December 2013 the applicant left Vietnam and entered the Mainland. She then entered Hong Kong illegally and was brought into custody in January 2014. In March 2014, she applied for non-refoulement protection.

4.  The basis of the applicant’s claim is that she would be harmed or killed by a creditor by the name HIEU due to non-repayment of a loan and her husband was violent towards her.

5.  The background facts have been summarized in the decision of the Judge at [5].

3) The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 25 August 2016. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director further decided against the applicant’s right to life claim on 3 March 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4) The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 2 September 2016. After a hearing held on 1 June 2018, the Board dismissed the applicant’s appeal on 19 October 2018 (‘the Board’s Decision’).

9.  The Board found that the applicant did not present herself as either believable or unbelievable but it held ‘demeanour is rarely very useful. Her story is internally adequately consistent as to the money lending, the loan collection incidents and domestic violence.’ It held that the problem the applicant faced was that it was purely a private matter relating to repayment of an outstanding loan. The applicant agreed during the hearing before the Board that HIEU no longer visited her home after her husband agreed to work for HIEU. After the applicant moved back to live with her parents, the applicant lost contact with her husband which would then mean no more domestic violence from the husband[1]. Avoidance of loan repayment and domestic violence are not convention reasons for non-refoulement[2]. On totality of the evidence, the Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled to Vietnam[3]. She failed on all grounds.

5) Decision of the Judge

10.  The applicant filed her Form 86 supported with grounds which simply stated that she wished to extend her duration of stay. In her supporting affirmation, she stated that she carried out fishery business in Vietnam and borrowed money from the triads. The triads attacked her and she fled to Hong Kong. She wished to stay in Hong Kong for a while and she promised to return to Vietnam in the future.

11.  The Judge held there were no valid grounds by the applicant to challenge the Board’s decision. There was no reasonably arguable basis to challenge the Board’s decision.

6) Grounds of appeal

12.  The applicant in the notice of appeal stated that if she returned to Vietnam her life will be seriously threatened because the creditors are violent and cruel. She cannot change to another location to live because her health was not good. She believed it was possible for the creditor to find out where she lives if she returns.

13.  In the applicant’s affirmation, she stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.

7) Our view

14.  We are of the view that the applicant’s grounds of appeal consist of bare allegations without particulars or specifics. The appeal is without merits. The applicant provided no reasonably arguable grounds for judicial review. An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced. The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

15.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

16.  We see no basis to disturb the Deputy Judge’s decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person