RE NGUYEN MANH QUYEN

CACV 447/2022, [2024] HKCA 36

On Appeal From [2023] HKCA 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2022

(ON APPEAL FROM HCAL NO 2472 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 4 October 2023 ([2023] HKCA 1122) (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 1 November 2022 ([2022] HKCFI 3131) (“the Decision”), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2.  On 6 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 not feasible 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 did not 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 [8] ‑ [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 abasis 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.

CACV 447/2022, [2023] HKCA 1122

On Appeal From [2022] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2022

(ON APPEAL FROM HCAL NO 2472 OF 2018)

____________________

____________________

_______________

J U D G M E N T

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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 1 November 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 3131).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 18 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 November 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 9 November 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 last entered Hong Kong illegally on 30 March 2015.  On 5 April 2015, he was arrested by the Hong Kong police for illegal remaining in Hong Kong and was referred to Castle Peak Immigration Centre on 6 April 2015.  By the written representation dated 11 April 2015, 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 4 November 2016 and 18 October 2018, 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 claim lacked credibility.  The Board found that the applicant’s failure to explain the inconsistencies in relation to the loan and the contradictory nature of his account of events undermined his credibility. The Board also casted doubt as to his ability to borrow the said sum and further noted that he was not harmed prior to his departure.  The Board further held 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 November 2018, 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, he only asserted that he would be harmed or killed by his creditor or the creditor’s 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. His reasons were set out in detail at [13] ‑ [19] of the Leave Decision:

“DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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 the decision of the Board.’

16. There is no valid reason to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 9 November 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 9 November 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 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, and we dismiss it.