RE DO VAN DONG

CACV 380/2023, [2024] HKCA 366

On Appeal From [2023] HKCFI 2857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2023

(ON APPEAL FROM HCAL NO. 1516 OF 2023)

____________________

____________________

____________________

JUDGMENT

____________________

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 9 November 2023 in which he refused to grant leave to him to apply for judicial review.

2)  Background

2.  The applicant is a national of Vietnam.  He alleged that on 4 December 2020 he illegally entered Hong Kong.  He made a non-refoulement claim by written representation on 28 January 2021^[1].

3.  The basis of the applicant’s claim is that he would be harmed or killed by a creditor by the name of Ah Keung if he returned to Vietnam.

4.  The applicant borrowed two billion VND from his creditors in October 2017 for investment purpose.  The applicant was repaying interest on the loan until February 2018 when he had financial difficulty.  Ah Keung and his followers then went to the applicant’s residence and threatened to beat him up but will not kill the applicant if he does not repay.  On another incident, Ah Keung used a weapon to hit the applicant’s head leaving a 4‑cm cut which needed 12 stitches and hospitalization for one week.  The applicant reported to the Police.  Ah Keung was convicted but only given a suspended sentence. He did not stop harassing the applicant.  Ah Keung’s followers frequently went to the applicant’s workplace to harass and attack the applicant.  The applicant felt unsafe and left Vietnam for Hong Kong via the Mainland^[2].

5.  The background facts have been summarized in the decision of the Judge at [5] to [9].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 21 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’) on 2 November 2021.  After hearings held on 25 May 2023 and 9 June 2023, the Board dismissed the applicant’s appeal on 7 July 2023 (‘the Board’s Decision’).

8.  The Board found the applicant not being a witness of truth.  There were serious discrepancies between his testimony and what was written in his non-refoulement claim forms.  The only reasonable explanation for such discrepancies is that his testimony and information were unbelievable, and his purported non-refoulement risks were based on information that lacked credence^[4].

9.  The Board further found internal relocation was possible for the applicant to evade his creditors.  There was no evidence to suggest that the creditors had the ability to find the applicant anywhere in Vietnam.  The applicant was 33 years old and had seven years of working experience and could find work elsewhere from home within Vietnam^[5]. 

10.  For the torture risk, the Board found that the dispute between the applicant and the creditors was private in nature and did not involve the Vietnam state.  This does not satisfy the meaning of torture within the definition under the Immigration Ordinance^[6].

11.  For BOR 2 risk, the Board found that the applicant’s situation did not involve death penalty or genocide^[7].

12.  For BOR 3 risk, the Board found that the applicant must show a minimum level of severity and a real risk of harm.  The Board found that such risks were low^[8]. 

13.  For persecution risk, the Board found that the applicant’s matter was a private dispute and did not involve race, religion, nationality or political threats^[9]. 

5)  Decision of the Judge

14.  The applicant filed her Form 86 and affirmation without stating any grounds of challenge.

15.  The Judge held that there were no valid grounds by the applicant to challenge the Board’s Decision.  The Judge held that the applicant disagreed with the Board’s Decision but he did not explain why the Board was wrong.  The Judge held that the applicant was in reality appealing against the Board’s finding of fact, and that the Court will not overturn the Board’s Decision unless there was error of law^[10].  The Judge further held that the Board upon assessment of the applicant’s evidence found the applicant to be incredible was a finding of fact^[11].

6)  Grounds of appeal

16.  The applicant in the notice of appeal stated that :

‘ And further take notice that the grounds of this appeal are that the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.’

17.  The applicant in his affirmation stated that :

‘ 2. However, I understand that a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

3. Additionally, I was informed that the Director of Immigration and the Adjudicator did not see the grounds to reverse their decisions.’

18.  The applicant’s written ‘Skeleton Arguments’ can be summarized as follows :

Paragraphs 1 to 9 : factual background of the applicant’s case;

(Ground 1) Paragraphs 10 to 13 : the applicant complained that the Board did not focus on Ah Keung injuring the applicant’s head with knives which was a grevious bodily harm. He complained that the Board was simply making conjectures when it opined that the creditors only wanted money without intending to kill the applicant.  The Board had taken irrelevant matter into consideration;

(Ground 2) Paragraphs 14 to 16 : The applicant complained that the Board should have probed further and asked the applicant to provide more information on the background of the creditors when it was found that the applicant did not know much about the creditors’ background.  The Board failed to apply the high standard of fairness;

(Ground 3) Paragraphs 17 to 19 : The veracity of the country of origin information from e-newspaper as relied upon by the Board is called into question. The Board did not evaluate such information. An oral hearing could have made a difference;

(Ground 4) Paragraphs 20 to 22 : It was irrational for the Board to hold that the minimum level of severity was not reached while acknowledging that the applicant had been ‘plummeled, bludgeoned and threatened with a death threat’; and

(Ground 5) Paragraphs 23 to 25 : The Board was wrong to have held internal relocation is possible when it had not ascertained if the applicant has any particular transferable skills suitable for relocation.  Hence the Board took into account irrelevant matters.

7)  Our view

19.  We are of the view that the applicant’s grounds of appeal consist of bare allegations without particulars or specifics.  The appeal is without merits.  The applicant 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].

20.  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.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.  They are arguments against the Board, not arguments against the Deputy Judge.

21.  The Judge found that the applicant was not a credible witness.  This destroyed the foundation of his claim.  The Judge nonetheless went on to consider the various grounds in the light of his findings. 

22.  For completeness, however, we will deal with the grounds as contained in the applicant’s written submissions :

(1)  For Ground 1, the applicant has not provided any medical evidence for the Board’s assessment of the severity of his cut.  Moreover, the focus of the Board was to determine if the attack reached the minimum level of severity as required and it was held that it did not.  This is a finding of fact that the Board was entitled to arrive at.

(2)  For Ground 2, it is trite that it is not the obligation of the Board to probe and actively assist the applicant.  The applicant cannot sit back and let the Board disprove his case.  To determine whether a claim is made out there must be joint endeavour: TK v Michael Jenkins [2013] 1 HKC 526 at [25].

(3)  For Ground 3, the applicant has not shown by evidence but simply submit that the veracity of the Board’s country of origin information relied upon is flawed when they are sourced from website from the United States and Vietnam official website.  As for chance of an oral hearing, the applicant appeared before the Board for hearing and it falls ill in the applicant’s mouth to say that he was not offered a chance of oral hearing.  In any event it is also trite that there is no absolute right to an oral hearing: ST v Betty Kwan [2014] 4 HKLRD 277 at [26].

(4)  For Ground 4, it is factually incorrect to submit that the Board acknowledged that the applicant had been ‘plummeled’ or ‘bludgeoned’.

(5)  For Ground 5, it is for the applicant to prove that he has no general transferable skills for relocation.

23.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.