RE DINH HUU VAN

CACV 17/2023, [2024] HKCA 35

On Appeal From [2023] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2023

(ON APPEAL FROM HCAL NO 2569 OF 2018)

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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.  By a judgment dated 4 October 2023 ([2023] HKCA 1123) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 10 January 2023 ([2023] HKCFI 44) (“the Decision”), whereby the Deputy Judge dismissed his application for leave to apply for judicial review.

2.  On 16 October 2023, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal if 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.

5.  In his Notice of Motion, the applicant alleged that:

“1. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal; and

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.” (sic)

6.  In his supporting affirmation, the applicant stated that:

“1. This is my application to apply for leave to appeal against the Order made by Hon Cheung and Hon Au on 04 October 2023 refusing leave to apply for Judicial Review from the Oder of the Deputy High Court Judge K W Lung given on 10 January 2023 refusing leave to apply for judicial review.

2. I have no knowledge about English. I did not have financial means to obtain concrete legal advice regarding the procedure of appeal.

3. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal be proceeded.

5. I humbly request the Court to exercise its discretion to allow me to appeal.” (sic)

7.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 27 October 2023. In those submissions, the applicant alleged that his life is still under threat in his home country and that the Board and the Director failed to adhere to the high standard of fairness and failed to inquire about his fear upon refoulement when the Country of Origin Information (“COI”) still shows that authorities in his own country cannot protect him.  He further claimed that his claim is based on his true story and that he claimed that his non-refoulement claim should be considered under BOR3 risk.  He further asserted that the decision makers did not observe his fear properly.

8.  In our view, the applicant’s application is plainly devoid of merits.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Judgment. Furthermore, although he alleged that he had no knowledge of English, it is noted that all the Court documents prepared by the applicant in the lower court and the appeal are all in English and the applicant did not show he had suffered any prejudice for his lack of knowledge of English. Clearly, his assertions do not constitute proper grounds of appeal.

9.  Moreover, it is trite that assessment of evidence, COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

10.  Further and in any event, even taking it at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

11.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12.  For these reasons, the Notice of Motion is dismissed.