CACV 221/2023, [2024] HKCA 985
On appeal from [2023] HKCFI 1704
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 221 OF 2023
(ON APPEAL FROM HCAL NO 493 OF 2023)
________________________
BETWEEN |
| | Bui Quang Dao | Applicant |
| | and | |
| | Torture Claims Appeal Board | Putative |
| | | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
________________________
| Before: | Hon Kwan VP and Chow JA in Court |
| Date of Judgment: | 25 October 2024 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 30 June 2023, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 13 July 2023.
2. The applicant is a national of Vietnam. He is 42 years old. He alleged that he illegally entered Hong Kong on 27 March 2020. He surrendered to the Immigration Department on 21 April 2020 and lodged a non-refoulement claim on 8 July 2020. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor as he was unable to repay his debt.
The Director’s decision
3. By a Notice of Decision dated 22 January 2021, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. The Director assessed that the risk of harm was low as the creditor had not harmed the applicant in the past. The Director considered that the creditor did not have real intention to harm or kill the applicant and his verbal threat was just a way to urge the applicant to repay the debt. The Director further found that the applicant’s problem arose from a private dispute and there is no involvement from the Vietnamese government or officials. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.
The Board’s decision
5. The applicant’s appeal against the Director’s decision was heard before the Board on 27 July 2021. The Board found it implausible that the applicant would take a loan from the bank and pledge his father’s property to start a business in which he had no previous experience. The Board also did not accept the applicant’s case that his creditor would lend him a large sum of money without any security after knowing that he had already mortgaged a property to the bank. The Board further considered that even if there would be any risk of harm from the creditor as alleged, it has arisen from a private dispute which has nothing to do with any of the convention reasons. The Board also found that the applicant could avoid any risk of harm from his creditor by relocating to Hanoi or Ho Chi Minh City. Thus, the Board concluded that the applicant failed to establish his claim and rejected the appeal on 9 March 2023.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 29 March 2023 to seek leave to apply for judicial review against the decision of the Board. In his supporting affirmation, the applicant only reiterated that he cannot go back to his home country because his life will be in danger, without putting forward any grounds for his intended challenge against the Board’s decision.
The judge’s decision
7. DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing. The judge decided that the applicant failed to identify any error of law or irrationality or procedural unfairness in the proceedings before the Board or in the Board’s decision. As the applicant failed to show any prospect of success in his intended judicial review, the leave application was refused on 30 June 2023.
Grounds of appeal
8. In the Notice of Appeal and affirmation filed on 13 July 2023, the applicant stated his grounds of appeal as follows:
(1) If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;
(2) The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;
(3) With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;
(4) The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;
(5) The Director and the Board “did not see the grounds” to reserve their decisions.
9. The applicant has lodged a written consent for the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 13 July 2023 requiring the applicant to lodge skeleton argument on or before 27 July 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions in this appeal.
Legal Principles
10. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
11. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis and disposition
12. The applicant’s grounds are just bare assertions without particulars or evidence in support. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. There is no merit in any of his grounds of appeal.
13. We dismiss the appeal as it is devoid of merit.
(Susan Kwan)
Vice President | (Anderson Chow)
Justice of Appeal |
The Applicant (Appellant), acting in person
[1] [2023] HKCFI 1704
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to 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).
[5] 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.