LUU NGOC QUYET v. TORTURE CLAIMS APPEAL BOARD

CACV 167/2023, [2024] HKCA 127

On appeal from [2023] HKCFI 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2023

(ON APPEAL FROM HCAL NO 1274 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 24 May 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 1 June 2023.

2.  The applicant is a national of Vietnam. He is 41 years old. He alleged that he entered into Hong Kong illegally on 22 November 2015. He lodged a non-refoulement claim on 24 November 2015. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and the latter’s associates as he was unable to repay his debt.

The Director’s decision

3.  By a Notice of Decision dated 5 April 2017, 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 alleged past ill-treatments had not attained the prescribed minimum level of severity. The Director considered that the actions of the creditor and his associates have not shown a real intention to seriously harm or kill the applicant but only showed an intention to chase for repayment. There is also no evidence to show that they were holding any position in the Vietnamese government. Besides, the Director 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 31 January 2019. The Board found the applicant’s account untruthful because of significant discrepancies in his evidence and his failure to provide satisfactory explanation for the discrepancies. The Board did not accept that the applicant had been ill-treated as alleged or that there is real risk that he will be ill-treated or at risk of arbitrary deprivation of life if refouled. There is also no evidence to show that the government of his home country targeted the applicant. The Board further found that reasonable state protection and internal relocation options are available to the applicant in Vietnam. Thus, the Board concluded that the applicant failed to establish his claim and rejected the appeal on 22 March 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 10 May 2019 to seek leave to apply for judicial review against the decision of the Board. The applicant only reiterated the problems he faced in his home country in his supporting affirmation 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 his process 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 24 May 2023.

Grounds of appeal

8.  In the notice of appeal and his affirmation filed on 1 June 2023, the applicant stated his grounds of appeal as follows:

(1)  If he returns to Vietnam, his life would be seriously threatened or he would 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 people.

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant would 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 and the Board “did not see the grounds to reserve their decisions”.

9.  The applicant has given written consent to the disposal of his appeal on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 1 June 2023 requiring the applicant to lodge skeleton argument on or before 15 June 2023. The directions provided that in the event he 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 the 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 into account relevant matters placed before the court or was otherwise plainly wrong.

Analysis and disposition

12.  The applicant’s grounds of appeal were not raised in his application before the Court of First Instance. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[6]. In any event, the grounds of appeal are just bare assertions without any evidence in support.

13.  The applicant failed to demonstrate that the judge had made any errors of law, failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

14.  For the above reasons, this appeal is devoid of merit and we dismiss it accordingly.