RE NGUYEN THI THANH HUYEN

CACV 2/2024, [2025] HKCA 655

On Appeal From [2023] HKCFI 3363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2024

(ON APPEAL FROM HCAL NO. 1083 OF 2022)

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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 11 September 2024, this Court (Cheung and Chow JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 28 December 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 30 September 2024, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in her notice of motion the following in summary :

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

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

3)  Relocation was not feasible, as she will face difficulties and there is no guarantee that she will be able to adapt;

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

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

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

4.  Despite the directions from the High Court to the applicant dated 30 September 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 her 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 HongKong 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 her 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 30 September 2024 is dismissed.

CACV 2/2024, [2024] HKCA 855

On Appeal From [2023] HKCFI 3363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2024

(ON APPEAL FROM HCAL NO. 1083 OF 2022)

____________________

____________________

____________________

JUDGMENT

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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 To of 28 December 2023 in which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to her appeal being disposed of on paper by a written confirmation filed on 3 January 2024.

2.  Despite the directions of the Registrar of Civil Appeals dated 3 January 2024, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court would deal with this appeal on paper based on the documents available. 

2)  Factual background

3.  The applicant is a national of Vietnam.  She had come to Hong Kong on previous occasions.  In 2013 she was sentenced to 20 months’ imprisonment for illegal remaining in Hong Kong, and was deported back to Vietnam in April 2014.  In June 2021, the applicant was arrested by the Police in Hong Kong for illegal remaining.  She alleged that in March 2021 she entered Hong Kong illegally via the Mainland.  In July 2021, the applicant applied for non‑refoulement protection[1].

4.  The basis of the applicant’s claim is that she would be harmed or killed by a creditor Bui Thi Thanh for non‑repayment of a loan[2].  

5.  The background facts have been summarized in the decision of the Judge at [3]-[10].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 7 October 2021.  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[3] (‘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’).  No oral hearing was held pursuant to section 12, schedule 1A of the Immigration Ordinance (Cap. 115) and the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme[4].  The Board dismissed the applicant’s appeal on 30 September 2022 (‘the Board’s Decision’).

8.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [12]-[17].

5)  Decision of the Judge

9.  The applicant filed her Form 86 supported with an affirmation.  The applicant advanced two pages of grounds for leave to apply for judicial review.  She basically quoted procedural background and repeated the essence of her case.  Details can be referred to the decision of the Judge at [19].

10.  The Judge held that the applicant was challenging the Board’s finding of fact which was impermissible unless the finding involved error of law or procedural unfairness.  The Judge could not detect any error of law or procedural unfairness at any stage of the non-refoulement proceedings.  The Judge held that the proposed judicial review has no realistic prospect of success.

6)  Grounds of appeal

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

1)  If she is refouled to Vietnam she will be threatened or will be dead because the gangsters in Vietnam are different to those in Hong Kong since most of them are cruel and violent;

2)  She cannot live in another location in Vietnam because there will be many difficulties and obstacles.  There is no guarantee that she can adapt to the new place;

3)  There is a nation wide social network of gangsters with corrupt people in the government, and it is possible for the creditors to locate her; and

4)  The Director did not consider her human rights under the Basic Law.

12.  In the applicant’s affirmation, the following were stated :

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

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

3)  The applicant asks the Court to exercise its discretion to allow the appeal.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merits.  The applicant has 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.