RE BUI VAN PHUC

CACV 479/2024, [2025] HKCA 468

On Appeal From [2024] HKCFI 3030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 479 OF 2024

(ON APPEAL FROM HCAL NO 1147 OF 2024)

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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 the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 November 2024 ([2024] HKCFI 3030) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 July 2024 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 5 May 2016 (“the Director’s 1^st Decision”) and 10 March 2017 (“the Director’s 2^nd Decision”) refusing his non-refoulement claim (collectively referred to as “the Director’s Decisions”).

2.  By the written confirmation dated 13 November 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally in December 2014 and was arrested by police on 2 January 2015 for possession of a forged identity card and was subsequently convicted and sentenced to prison for 15 months.  On 2 April 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his parents’ creditor over their debts.  Details of his claim were summarised by the Judge at [1] ‑ [4] of the Leave Decision.

4.  By the Director’s Decisions, the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant then appealed against the Director’s Decisions to the Board.  The Board dismissed his appeal on 25 April 2018.  Subsequently, upon obtaining leave to apply for judicial review, the said decision by the Board was quashed by consent order and the applicant’s appeal was remitted back for fresh determination by a differently constituted Board.

6.  On 20 June 2024, the applicant attended a hearing before the Board during which he gave evidence. By the Board’s Decision, his appeal was dismissed.  The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. By a decision dated 3 July 2024 the Board dismissed the Applicant’s appeal upon finding material inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from the loan shark and his gang that caused him to leave his country to come to Hong Kong to seek protection, that even if his account were true that there was no reliable evidence of any real intention of the loan shark or his gang to seriously harm or kill him, and that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

7.  On 17 July 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  In his Form 86, he raised various grounds of challenge as summarised by the Judge at [10] of the Leave Decision.  In essence, the applicant complained of procedural unfairness and Wednesbury unreasonableness in the Board’s Decision, in particular, that the Board failed to consider or give proper weight to various country of origin information, state acquiescence, the corruption in his home country and that his life would be harmed upon refoulement.

8.  On 8 October 2024, the applicant attended an oral hearing before the Judge and a Vietnamese interpreter was present to provide language assistance.

9.  By the Leave Decision, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [11] ‑ [15] of the Leave Decision:

“11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and the loan shark and his gang only without any official involvement or political element at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his application or at the hearing before the Court, I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has been correctly established by the Director in his decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

THIS APPEAL

10.  In his Notice of Appeal filed on 13 November 2024, the applicant asserted that if refouled, his life would be seriously threatened and as the creditors and gangsters were cruel and violent.  He also contended that internal relocation would be completely infeasible and that there would be many difficulties and obstacles that he would have to face in the new location.  He also claimed that given the nationwide network, it might be possible for his enemies to find out his new residence.  He further asserted that the Immigration Department failed to consider his human rights under various legislations but failed to condescend upon particulars.

11.  In his supporting affirmation filed on 13 November 2024, the applicant also stated that he understood that there was a good ground appeal that was not necessarily considered at the stage of applying for leave for judicial review, but failed to state what the said ground was.

12.  Contrary to the directions given by the Registrar of Civil Appeals dated 13 November 2024, the applicant failed to lodge any written submissions.

DISCUSSION

13.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, supra, at [14(6)]).

14.  In our view, the applicant’s appeal has no substance.  At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  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 failed to identify any error with specific particulars against the Leave Decision.  Accordingly, his assertions are not valid grounds of appeal.

15.  We have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

16.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.