RE BUI DUC CUONG

CACV 533/2021

[2022] HKCA 725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 533 OF 2021

(ON APPEAL FROM HCAL NO. 2234 OF 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge P Li (“the Judge”) given on 18 November 2021 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 24 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 December 2017 rejecting his non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 28 March 2022. The applicant was directed to lodge his written skeleton argument by 28 February 2022 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 26 January 2022 and the Notice of Hearing dated 14 February 2022.

3.  The applicant failed to lodge his skeleton argument by the stipulated time, the hearing date was accordingly vacated. We have proceeded to process this appeal on paper based on the available materials.

4.  The applicant is a national of Vietnam. He entered Hong Kong illegally and was arrested by the police on 15 December 2016. He later raised a non-refoulement claim based on his fear of being harmed or killed by his creditor and his followers due to his failure to repay his loan. The applicant’s case was set out in detail in the Director’s decision at [7] and [8], and summarised by the Board at [23] to [32] of its decision and by the Judge at [2] to [7] of the Form CALL-1 dated 18 November 2021, [2021] HKCFI 3422.

5.  In gist, the applicant borrowed a sum of money for his mother’s medical expenses from a moneylender with a triad background. His monthly income could only allow him to repay the interest but not the principal. His creditor told him to sell drugs for him, which he refused. He was afterwards attacked by 3 to 4 men armed with wooden rods and a knife. They threatened to kill him if he did not repay the loan. He sustained a head injury and received treatment from a friend. After learning from his family members that the creditor was looking for him, he feared for his personal safety and decided to flee the country to come to Hong Kong.

6.  By a Notice of Decision dated 13 December 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].

7.  The applicant appealed the Director’s decision to the Board. The Board considered it was not necessary to hold an oral hearing. By its decision dated 24 August 2018, the Board dismissed the appeal. In short, the Board found, on the applicant’s case, the harm or suffering inflicted on him did not meet the minimum level of severity or definition of torture, his dispute was private in nature, there was no evidence that his creditor would locate him anywhere in the country, or his life would be arbitrarily deprived. The Board also found state protection and internal relocation alternatives were reasonably available, which would reduce or negate any risk of harm that he might face. The Board concluded that the applicant failed to establish his entitlement under any of the applicable grounds.

8.  The applicant filed his Form 86 together with a supporting affirmation on 15 October 2018 to seek leave to apply for judicial review against the decision of the Board. The Form 86 did not set out any ground for seeking relief. In the supporting affirmation, the applicant stated that the interest had accumulated to a large sum which he could not repay, and that his creditor and his followers would not spare him and would kill him.

9.  The Judge dealt with the application on the papers. By his decision of 18 November 2021, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success. The Judge was of the view that, having regard to the detailed evidence in the applicant’s non-refoulement claim form, the Board could not be criticised for determining the appeal without holding an oral hearing. The Judge also considered that the Board had considered the applicant’s evidence in detail and its assessment of the risk of harm and conclusion that none of the applicable grounds was made out were well justified. The Judge did not find any error of law, irrationality or procedural irregularity in the Board’s decision.

10.  In the Notice of Appeal filed on 30 November 2021, the applicant stated that the gravity of his circumstances had not been considered or appreciated by the Director and the Board in determining his non-refoulement claim, and that he should be given an opportunity to plead his case properly.

11.  What was stated in the Notice of Appeal do not constitute viable grounds of appeal. The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

12.  In the present case, the applicant has not identified any error in the Judge’s decision and reasons. While he complained that the Director and the Board had not considered or appreciated his situation, he had not pointed to any specific error in their assessments and findings. We have considered the papers and the decision of the Director and the Board. We agree with the Judge that no error of law, irrationality or procedural irregularity can be discerned from their reasons and decisions that the applicant’s case do not meet the legal requirements for any of the applicable grounds. There is no basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

13.  For the above reasons, the appeal has no merits. Accordingly, we dismiss the appeal.