RE HOANG THI DIEU

CACV 370/2022, [2023] HKCA 715

On Appeal From [2022] HKCFI 2169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2022

(ON APPEAL FROM HCAL NO 2625 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.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 26 July 2022, by which the Deputy Judge, inter alia, refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 2169).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 23 August 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 3 August 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 8 September 2022, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam.  She claimed to have sneaked into Hong Kong from the Mainland on 22 December 2014 by boat.  On 12 January 2015, she surrendered to the Immigration Department for illegal remaining.  On 12 January 2015, she raised a non-refoulement claim on the basis that she will be harmed or killed by her creditor because her family failed to repay a debt owed to him.  In gist, the applicant claimed that as her father suffered from tuberculosis around the end of 2012, her family had borrowed a sum of 150,000,000 Vietnamese Dong from the creditor to over his medical expenses, after which, the loan was defaulted and the applicant claimed that the creditor had attacked her family and threatened to force her into prostitution.  She later left her home country for China in April 2014 and came to Hong Kong in December 2014.

5.  By their decisions respectively dated 3 August 2018 and 23 August 2019, the Director and the Board dismissed her non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate her non-refoulement claim on all applicable grounds.  In particular, in dismissing her appeal against the Director’s Decision, the Board found that the applicant was not a credible witness and did not accept her story to be true.  Further, the Board considered that the disputes were private in nature and that state protection would be available to her.  The Board found on the evidence that the applicant failed to discharge her burden of proving the factual basis to support her non-refoulement claim.

The Leave Decision

6.  On 10 September 2019, the applicant filed her Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was given by the applicant in support of her application.

7.  By way of a letter to Court on 4 July 2022, the applicant stated that she wanted to withdraw her application for judicial review as it is now safe for her to return to Vietnam.

8.  By the Leave Decision, the Deputy Judge acceded to her application and concluded the action by ordering a dismissal of the application.

The Appeal

9.  On 8 September 2022, the applicant filed a Notice of Appeal and a supporting affirmation to appeal against the Leave Decision.  In her Notice of Appeal, she stated that the gangsters and creditors disregarded the law and that she would be tortured, beaten or even killed.  She also claimed that it would be infeasible for her to internally relocate as she was not an active person and might be disadvantaged in the labour market.  She further claimed that it would be very dangerous for her to escape to another place in Vietnam.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 8 September 2022, the applicant failed to lodge any written submissions.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  At the outset, the applicant on her own motion applied to the Deputy Judge to withdraw her application for leave to apply for judicial review and the Deputy Judge acceded to her application.  The Deputy Judge was therefore correct to order a dismissal of the application.  Further, the applicant had not put forward any ground of view in support of her application for leave to apply for judicial review.  Accordingly, her application was clearly a non-starter and lacked proper foundation.

14.  In any event, it is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision.  Her complaints are also all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  This appeal must fail.

15.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.