DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 465/2022, [2023] HKCA 1381

On appeal from [2021] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 465 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 892 OF 2021)

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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.  This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 12 April 2023 ([2023] HKCA 517). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 28 July 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 17 May 2023. It was further directed that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam. He first came to Hong Kong illegally on 23 December 2018. He was arrested by the police on 29 December 2018 and was repatriated to Vietnam on 4 February 2019. He came to Hong Kong illegally again and on 29 May 2020 was arrested for wounding, unlawful remaining in Hong Kong, possession of forged Hong Kong Identity Card and criminal intimidation. He was sentenced to 15 months’ imprisonment. He lodged a non-refoulement claim on 11 October 2020 on the basis that he would be ill-treated or killed by his creditor because he is incapable of repaying the loan.

4.  The applicant stated his grounds of appeal in the notice of motion filed on 3 May 2023 which may be summarized as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board and the Director of Immigration.

(2)  If the applicant returns to Vietnam, his life would be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(4)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

6.  The applicant’s grounds are just bare assertions without particulars or evidence in support. He has not identified any mistakes in the judgment of the Court of Appeal nor raised any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

7.  For the above reasons, we refuse to grant leave to appeal to the the Court of Final Appeal and dismiss the notice of motion filed on 3 May 2023.