TRAN SAU LENH v. TORTURE CLAIMS APPEAL BOARD

CACV 468/2020

[2021] HKCA 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2020

(ON APPEAL FROM HCAL NO 743 OF 2018)

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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 (Kwan VP, Cheung JA and Au JA) handed down on 24 March 2021 ([2021] HKCA 296). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge Bruno Chan dated 2 September 2020 ([2020] HKCFI 2209) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 31 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 14 April 2021.  Having considered her submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a 62-year-old national of Vietnam.  She last entered Hong Kong illegally on 10 November 2015.  She surrendered to the Immigration Department and raised a non-refoulement claim on the same day.  Her claim was made on the basis that if she returns to Vietnam she will be harmed or killed by her creditor for failing to repay her loan. 

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 5 August 2016 and 11 October 2017.  Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 22 March 2018.

5.  She filed a Form 86 on 27 April 2018 to seek leave to apply for judicial review against the decision of the Board.  Her application was refused by DHCJ Bruno Chan on 2 September 2020.

6.  On 14 September 2020, the applicant filed a Notice of Appeal against the decision of DHCJ Bruno Chan.  Her appeal was dealt with on paper because she has consented to a disposal on paper by the court without an oral hearing.  It was dismissed by the Court of Appeal on 24 March 2021. The applicant filed a Notice of Motion on 30 March 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing her application for leave for judicial review and the appeal;

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

8.  In her written submissions, the applicant reiterated the problems she faced in Vietnam and stressed that high standards of fairness are required in the determination of a torture claim.  She further submitted that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.

Analysis and disposition

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

10.  The written submissions lodged by the applicant on 14 April 2021 are substantially similar to her previous written submissions lodged in the appeal on 1 December 2020.   The Court of Appeal has already rejected her submissions and set out the reasons for rejection in its judgment on 24 March 2021. 

11.  The applicant’s grounds against the Court of Appeal’s decision are untenable.  In particular, the decisions of the Director are not susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549.  The applicant also failed to demonstrate that the Court of Appeal was wrong in finding that her grounds of appeal are not supported by evidence and are lacking in particulars. 

12.  In addition, the applicant has failed to identify 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).

13.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 30 March 2021.