RE LUU VAN LY

CACV 205/2023, [2025] HKCA 381

On Appeal From [2023] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2023

(ON APPEAL FROM HCAL NO. 1997 OF 2020)

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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 30 July 2024, this Court (Cheung and Chow JJA)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 16 June 2023 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.  The applicant now applies, by a notice of motion filed on 7 August 2024, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion the following in summary :

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

2)  He will be tortured or even killed if he returns to Vietnam because the gangsters there are different from those in Hong Kong;

3)  Relocation was not feasible, as he will face difficulties and he has poor health;

4)  There is a nationwide social network of gangsters and it is quite possible for the gangsters to find his location;

5)  The Immigration Department did not consider his human rights under the Basic Law; and

6)  He seeks justice and asks for asylum in Hong Kong.

4.  Despite the directions from the High Court to the applicant dated 7 August 2024, the applicant failed to lodge the skeleton argument by the stipulated time.  Under [7] of those directions, the applicant has for failing to lodge written submissions in time abandoned his right to rely on written submissions.  The Court will deal with this application on the available materials.

II.  Our view

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘the 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.

6.  The matters stated by the applicant in his notice of motion are broad and vague assertions that do not pertain to nor explain and elaborate on the particular circumstances of the applicant.  A challenge to findings of fact is within the province of the Board.  In any event, the matters stated do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great 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 raised by the applicant.

7.  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

8.  For these reasons, the notice of motion dated 7 August 2024 is dismissed.

Applicant, unrepresented, acting in person

CACV 205/2023 , [2024] HKCA 725

On Appeal From [2023] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2023

(ON APPEAL FROM HCAL NO. 1997 OF 2020)

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________________________

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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 Bruno Chan of 16 June 2023 in which he refused to grant leave to him to apply for judicial review.

2.  By written confirmation of the applicant dated 30 June 2023, the applicant consented to the appeal being disposed of on paper without oral hearing.  By directions of the Registrar of Civil Appeal dated 30 June 2023, the applicant was to file his written submission by 14 July 2023, failing which he will be deemed to have abandoned his right to rely on written submission.  No written submissions were lodged by the applicant.  We will deal with this appeal based on the available documents.

2)  Factual background

3.  The applicant is a national of Vietnam.  In 1997, the applicant entered Hong Kong illegally and was subsequently arrested and deported back to Vietnam.  In 2019, the applicant again came to Hong Kong illegally and was arrested and sentenced to 18 months imprisonment[1].  The applicant raised his non-refoulement claim on 25 November 2019[2].

4.  The basis of the applicant’s claim is that he would be harmed or killed by a moneylender Mr Nguyen Van Long and his men as there is a loan dispute with him[3].

5.  The background facts have been summarized in the decision of the Judge at [2]-[4].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 26 May 2020. The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’)  as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 11 August 2020, the Board dismissed the applicant’s appeal on 8 September 2020 (‘the Board’s Decision’).

8.  The Board’s findings have been summarized in the decision of the Judge at [8].

5)  Decision of the Judge

9.  The applicant filed his Form 86 with supporting affirmation but no ground for seeking relief was provided, and the applicant simply stated that he does not agree with the decision which was grossly unfair and unjust without particulars as to how it was so, nor did the applicant request an oral hearing before the Judge.  No error of law or irrationality or procedural unfairness in the Board’s decision could be found.  There was no reasonably arguable basis for the intended challenge[4].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated the following in summary :

(1)  This is an appeal against the refusal of the Court of First Instance;

(2)  If the applicant is refouled to Vietnam he will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong.  Most of them are 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;

(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;

(6)  The applicant asks the Court of Appeal for a chance to seek justice; and

(7)  Due to the importance of the appeal, the appeal should be allowed.

11.  The above grounds of appeal are predominantly complaints against the Board’s finding of fact which are within the province of the Board.

12.  In the applicant’s supporting affirmation, he stated a summary of the following which are bare assertions without any particulars or explanation :

(1)  A good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review;

(2)  The decision makers ‘did not see the grounds to reserve their decision’; and

(3)  The applicant requests the Court to exercise its discretion to allow the applicant’s appeal.

7)  Our view

13.  We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics.  The applicant’s 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].

14.  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.

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

Applicant, unrepresented, acting in person