RE NGUYEN THI TUOI AND OTHERS

CACV 240/2023, [2024] HKCA 772

On Appeal From[2023] HKCFI 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2023

(ON APPEAL FROM HCAL NO. 1798 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the 1^st and 3^rd applicants against the decision of Deputy High Court Judge K W Lung of 20 July 2023 in which he refused to grant leave to the 1^st, 2^nd and 3^rd applicants to apply for judicial review.  The 1^st applicant is the mother of the 2^nd and 3^rd applicants who are adults.   The 2^nd applicant applied to the Judge to withdraw her application[1]. The 1^st and 3^rd applicants consented to their appeal being disposed of on paper in a written confirmation filed on 1 August 2023.

2.  Despite the directions of the Registrar of Civil Appeals dated 1 August 2023, the 1^st and 3^rd applicants failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court would deal with this appeal on paper based on the documents available. 

2)  Factual background

3.  The applicants are nationals of Vietnam.  They alleged that they entered Hong Kong illegally on about 22 March 2015.  On 15 May 2015, they applied for non-refoulement protection[2].

4.  The applicants are Catholics and the 1^st applicant’s husband is a missionary.  The basis of the applicants’ claim is that they would be harmed or killed by the Vietnam police for being involved with the spreading of Catholicism.  The 2^nd and 3^rd applicants confirmed that they entirely rely on the case of the 1^st applicant[3].  

5.  The background facts have been summarized in the decision of the Judge at [4]-[6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicants’ non-refoulement claim on 10 February 2017.  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[4] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicants appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 19 February 2019, the Board dismissed the applicants’ appeal on 18 June 2019 (‘the Board’s Decision’).

8.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [10].

5)  Decision of the Judge

9.  The 1^st applicant filed her Form 86 supported with an affirmation.  The Judge summarised the applicants’ case stated in the 1^st applicant’s affirmation as follows :

1)  The Vietnamese government was corrupt as it can be illustrated by the news that the prime minister resigned because of corruption in the government, and the Board erred in law for ruling that the Vietnamese government was not corrupt;

2)  The 1^st applicant’s husband was forbidden to preach and detained by the police.  The Board did not consider that the applicants as his family will also suffer pressure from the police; and

3)  The Board has not given good reason to say that the 1^st applicant would not be persecuted.

10.  The Judge held that the fact that the Vietnam prime minister resigned because he was unable to control corruption means that the government was determined to deal with corruption. While the husband was arrested and detained, there was no evidence to suggest that the 1^st applicant would also be arrested and detained as a result[5].  There was no evidence to suggest that the 1^st applicant would be persecuted upon returning to Vietnam[6].

6)  Grounds of appeal

11.  The 1^st and 3^rd applicants in the notice of appeal stated the following in summary :

1)  If the applicants are refouled to Vietnam they will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong most of them being cruel and violent;

2)  The applicants cannot live in another location in Vietnam because there will be many difficulties and obstacles.  There is no guarantee that the applicants can adapt to the new place;

3)  No matter where the applicants go in Vietnam they will be chased and arrested by the police; and

4)  The Immigration Department did not consider the applicants’ human rights under the Basic Law.

12.  In the applicants’ affirmation, the following were stated :

1)  A good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review;

2)  The Director and the Board ‘did not see grounds to reserve their decision’; and

3)  The applicants ask the Court to exercise its discretion to allow the appeal.

7)  Our view

13.  We are of the view that the applicants’ 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 applicants 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].

14.  It is thus incumbent on the applicants to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

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