|
CACV 202/2025, [2025] HKCA 603
On Appeal From [2025] HKCFI 1538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 202 OF 2025
(ON APPEAL FROM HCAL NO 810 OF 2024)
________________________
________________________
| Before: |
Hon Cheung and Au JJA in Court |
| Date of Judgment: |
4 July 2025 |
________________________
J U D G M E N T
________________________
Hon Au JA (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge Reuden Lai (“the Judge”) dated 11 April 2025 ([2025] HKCFI 1538)(“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 8 May 2024 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 20 December 2023 (“the Director’s Decision”) refusing his non-refoulement claim.
2. On 16 April 2025, 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. On 7 September 2023, he departed Vietnam for Hong Kong via China. He was arrested by the police on 15 September 2023. By written representations respectively dated 21 September 2023 and 22 September 2023, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor over their monetary disputes. Details of the applicant’s claim were summarised by the Judge at [2] - [7] of the Leave Decision.
4. By the Director’s Decision, 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 appealed against the Director’s Decision to the Board on 27 December 2023. He attended an oral hearing before the Board on 11 April 2024. By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision. After assessing the evidence, the Board rejected the applicant’s account as it was not credible: [19] of the Board’s Decision. The applicant did not provide any materials in support for the material assertions made: [25] of the Board’s Decision. The Board also found that state protection and internal relocation would be available for the applicant upon his return: [62] - [64] and [110] of the Board’s Decision. Accordingly, the applicant’s claim failed on all applicable grounds and the Board dismissed his appeal.
THE JUDGE’S DECISION
6. On 22 May 2024, the applicant filed a Form 86 together with a supporting affirmation to apply for extension of time and leave to apply for judicial review against the Board’s Decision. His grounds of review were concisely summarised by the Judge at [14] of the Leave Decision:
“(1) the Director and the Board reached their respective decisions wrongly in assessing the Claim and their decisions were not reasonable and fair;
(2) the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case leading to unfair outcome of rejecting the Claim;
(3) the Board was unreasonable and procedurally unfair by placing too much reliance on country of origin information (‘COI’) but failed to take his personal background and experience into account;
(4) the Director failed to consider or give enough weight to COI which supported his case that the police in his country would not be able to protect him;
(5) the Board was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him;
(6) the Board unreasonably required him to respond to questions that he was not in a position to offer any response;
(7) corruption and incompetency of the administration in his country was still a very serious problem and the Director had failed to take such argument into account or that the Director had failed to give enough weight to such argument before reaching his decision; and
(8) the Board ought to allow the Appeal and the Board’s Decision was irrational.”
7. The applicant attended an oral hearing before the Judge on 8 April 2025 and a Vietnamese interpreter was present to provide language assistance.
8. By the Leave Decision, the Judge refused to grant the applicant extension of time and dismissed his application for leave to apply for judicial review. His reasons were set out at [15] - [34] of the Leave Decision. In essence, the Judge found that the applicant failed to provide particulars or specifics as to how the Board had erred under the public law principles. The Board correctly rejected the applicant’s case as he failed to substantiate his assertions with evidence. The Board had also correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. The Judge thus found that the applicant’s intended judicial review was not reasonably arguable. Accordingly, the Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review.
THIS APPEAL
9. In his Notice of Appeal filed on 16 April 2025, the applicant mainly complained that, if refouled, his life would be seriously threatened by his creditor and local gangsters as it might be possible for them to locate him. He also claimed that internal relocation would be completely unfeasible as he was not an active person and there would be no guarantee that he would be able to adapt to the new place. He also complained that the Immigration Department failed to consider his human rights under various legislations but failed to particularise his complaint.
10. In his supporting affirmation filed on 16 April 2025, the applicant claimed that he understood that there was “a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”. However, the applicant failed to specify what the said ground was.
11. Contrary to the directions of the Registrar of Civil Appeals dated 16 April 2025, the applicant failed to lodge any written submissions.
DISCUSSION
12. 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 will 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 were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).
13. 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.
14. In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision. We agree with the Judge’s observations and see no basis to disturb the Leave Decision.
15. For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.
| (Peter Cheung) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
|