RE DINH HUU VAN

CACV 17/2023, [2024] HKCA 35

On Appeal From [2023] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2023

(ON APPEAL FROM HCAL NO 2569 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 1123) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 10 January 2023 ([2023] HKCFI 44) (“the Decision”), whereby the Deputy Judge dismissed his application for leave to apply for judicial review.

2.  On 16 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 alleged that:

“1. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal; and

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.” (sic)

6.  In his supporting affirmation, the applicant stated that:

“1. This is my application to apply for leave to appeal against the Order made by Hon Cheung and Hon Au on 04 October 2023 refusing leave to apply for Judicial Review from the Oder of the Deputy High Court Judge K W Lung given on 10 January 2023 refusing leave to apply for judicial review.

2. I have no knowledge about English. I did not have financial means to obtain concrete legal advice regarding the procedure of appeal.

3. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal be proceeded.

5. I humbly request the Court to exercise its discretion to allow me to appeal.” (sic)

7.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 27 October 2023. In those submissions, the applicant alleged that his life is still under threat in his home country and that the Board and the Director failed to adhere to the high standard of fairness and failed to inquire about his fear upon refoulement when the Country of Origin Information (“COI”) still shows that authorities in his own country cannot protect him.  He further claimed that his claim is based on his true story and that he claimed that his non-refoulement claim should be considered under BOR3 risk.  He further asserted that the decision makers did not observe his fear properly.

8.  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]. More importantly, he did not identify any specific error in the Judgment. Furthermore, although he alleged that he had no knowledge of English, it is noted that all the Court documents prepared by the applicant in the lower court and the appeal are all in English and the applicant did not show he had suffered any prejudice for his lack of knowledge of English. Clearly, his assertions do not constitute proper grounds of appeal.

9.  Moreover, it is trite that assessment of evidence, COI 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].

10.  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.

11.  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.

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

CACV 17/2023, [2023] HKCA 1123

On Appeal From [2023] HKCFI 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2023

(ON APPEAL FROM HCAL NO 2569 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 10 January 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 44).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 8 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 March 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 18 January 2023, 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 25 August 2015.  On 1 September 2015, he surrendered himself to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by the Vietnamese government, as he was a follower or practitioner of a religion called “Supreme Master Ching Hai Meditation Association”, which the applicant alleged to be prohibited in Vietnam.  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 7 March 2017 and 8 November 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 considered the country of origin information (“COI”) relating to the freedom of religion in Vietnam and information on supreme master Ching Hai and the Quan Yin method.  Then, it proceeded to consider the evidence.  The Board noticed that there were only three police interventions and the applicant had never been physically assaulted.  It also considered the alleged administrative violation record which was the crux of the applicant’s claim and found that it might be a forged document.  Further, as revealed on its website, the nature of the said association was not a religion and certain details of the applicant’s evidence on the said religion was inconsistent with those revealed on its website.  The Board also noted that the applicant’s mother, who was a follower of the said religion, was not disturbed by the authorities.  Insofar as the documentary evidence was concerned, the Board found that it related only to general information which did not assist the applicant’s case.  Accordingly, the Board found that the applicant’s claim lacked credibility and failed to substantiate on all applicable grounds.  The Board thus dismissed his appeal.

The Leave Decision

7.  On 15 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 merely asserted that if refouled to Vietnam, his life would be in danger because the local authority “could have inflicted more serious harm had they intended to do so”.  As the applicant did not request for any oral hearing, his application was considered 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:

“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 Decision 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.  The Board had assessed his case and, for the reasons it has given, did not accept his evidence on the facts of his case. 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 18 January 2023, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he stated that his life would be threatened and he probably would be killed if returned to Vietnam because the Government of Vietnam is cruel and violent and considered Supreme Master Ching Hai an evil religion and a reactionary organisation.  He claimed that the government has used a lot of measure to suppress and eliminate those who participated in this religion organisation. He also claimed that it would be infeasible for him to internally relocate as he was ill and not an active person and might be disadvantaged in the labour market.  He further claimed that because Vietnam is a unified state with unified ideology and line, and that he is a reactionary so no matter where he goes he would be chased and arrested by the police and the Vietnamese government and that it would still be very dangerous for him to escape to another place in Vietnam.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 18 January 2023, 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.