RE LE HUU PHUOC

CACV 100/2025, [2025] HKCA 1065

On Appeal From [2025] HKCA 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 100 OF 2025

(ON APPEAL FROM HCAL NO 1664 OF 2019)

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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.  On 15 July 2025, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 26 June 2025 (“the Judgment”) ([2025] HKCA 593). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 18 February 2025, by which the Judge dismissed his application for leave to apply for judicial review ([2025] HKCFI 402).

2.  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.

3.  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.

4.  In his Notice of Motion, the applicant alleges that his life will 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.  He further contends 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 creditors and gangsters to find out his new address.  He further alleges that the Immigration Department did not consider his human rights under various legislations but fails to particularise his complaint.

5.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

6.  In our view, the applicant’s application is plainly devoid of merit.  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 also a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [8] ‑ [15] of the Judgment.  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.

7.  Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

8.  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.

9.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 15 July 2025 is dismissed.

CACV 100/2025, [2025] HKCA 593

On Appeal From [2025] HKCFI 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 100 OF 2025

(ON APPEAL FROM HCAL NO 1664 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 18 February 2025 ([2025] HKCFI 402)(“the Leave Decision”), refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 22 March 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 21 August 2017 (“the Director’s Decision”) refusing his non-refoulement claim.

2.  On 4 March 2025, 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

3.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 22 August 2015.  He surrendered to the Immigration Department on 25 August 2015.  On the same day, he raised a non‑refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [8] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed against the Director’s Decision to the Board on 1 September 2017.  After considering the evidence, the Board considered it proper to determine his appeal on paper.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [12] ‑ [13] of the Leave Decision.  Essentially, the Board found that the applicant’s evidence was internally inconsistent and was very scant in relation to the alleged threats made by his uncle.  The Board also found that it would not be unduly harsh for the applicant to internally relocate and support himself.  Accordingly, his non-refoulement claim failed on all applicable grounds and his appeal was dismissed.

THE JUDGE’S DECISION

6.  On 17 June 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  In essence, he disagreed with the Board’s Decision and alleged that the Board’s assessment was based on subjective perception and was thus wrong. He also alleged that the Board failed to take into account the corruption situation of the Vietnamese government.  Accordingly, the Board’s assessment as to his risk of harm under the applicable grounds was wrong and that the lack of oral hearing was also procedurally unfair to him.

7.  By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were set out at [16] ‑ [29] of the Leave Decision.  In essence, the Judge found that the Board’s assessment of the evidence was without fault and that it was based on objective evidence that the Board found the reasonable availability of state protection to the applicant.  The Board’s Decision was based on proper assessment of all the available evidence before it and there was no error.  As to the lack of oral hearing, the Judge also found that the Board had duly considered evidence as well as the principles laid down in ST v Betty Kwan [2014] 4 HKLRD 277.  There was no procedural unfairness to the applicant.  As the applicant’s intended judicial review was not reasonably arguable, the Judge dismissed his application.

THIS APPEAL

8.  In his Notice of Appeal filed on 4 March 2025, the applicant mainly complained that, if refouled, his life would be seriously threatened by his creditor and local gangsters as it might be possible for them to locate him.  He also claimed that internal relocation would be completely unfeasible as he was not an active person and there would be no guarantee that he would be able to adapt to the new place.  He also complained that the Immigration Department failed to consider his human rights under various legislations but failed to particularise his complaint.

9.  In his supporting affirmation filed on 4 March 2025, the applicant claimed that he understood that there was “a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”.  However, the applicant failed to specify what the said ground was.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 4 March 2025, the applicant failed to lodge any written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(6)]).

12.  In our view, the applicant’s appeal has no substance.  At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  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 failed to identify any error with specific particulars against the Leave Decision.  Accordingly, his assertions are not valid grounds of appeal.

13.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.

15.  This judgment is given in English as both the Notice of Appeal and the Affirmation filed in support of the appeal are all written in English.  If he finds it necessary, the applicant can apply to the court to have this judgment interpreted to him in court at a pre-fixed time.