RE TRAN VAN HOANG

CACV 322/2023 , [2024] HKCA 728

On Appeal From [2023] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 322 OF 2023

(ON APPEAL FROM HCAL NO. 987 OF 2023)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 10 October 2023 in which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to his appeal being disposed of on paper in a written confirmation filed on 16 October 2023.

2.  Despite the directions of the Registrar of Civil Appeals dated 16 October 2023, the applicant 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 applicant is a national of Vietnam.  According to the applicant, he left Vietnam on 1 March 2021 for Hong Kong via the Mainland.  He illegally entered Hong Kong by boat on 3 March 2021.  On 19 May 2021, the applicant was arrested.  A removal order was issued against him on 1 June 2021 and served to him on 3 June 2021.  On 12 July 2021, he raised a non-refoulement claim by written representation[1].

4.  The basis of the applicant’s claim is that he would be harmed or killed by a creditor Nguyen Van Thang and his followers due to non-repayment of a loan[2].  

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

3)  The Director’s Decisions

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 30 March 2022.  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[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 4 August 2022, the Board dismissed the applicant’s appeal on 18 November 2022 (‘the Board’s Decision’). 

8.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [9]-[10].

5)  Decision of the Judge

9.  The applicant filed his Form 86 supported with an affirmation but he merely stated that he does not agree with the Board’s decision so he wanted to file a judicial review.  The applicant also stated that his life will be in danger if he returns.

10.  The Judge held that the Court will not usurp the fact finding power of the Board in the absence of any legal error or procedural unfairness or irrationality.  The Board rejected the applicant’s claim based on an absence of credibility.  The Board found no evidence that the applicant will be subjected to the risks as claimed if he returns to his home country[4].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following in summary :

(1)  If the applicant is refouled to Vietnam he 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 applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle.  The applicant’s health is not good.  There is no guarantee that the applicant can adapt to the new place.

(3)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find the applicant.

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

12.  The applicant in the his supporting affirmation stated the following in summary :

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

(2)  The applicant was informed by the Director and Board that they ‘did not see the grounds to reserve its decision’; and

(3)  The applicant requests the Court to exercise discretion to allow the appeal.

7)  Our view

13.  We are of the view that the applicant’s documents consist of bare allegations without particulars or specifics.  The applicant’s 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 applicant 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 applicant 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.