RE LE HUU PHUOC

CACV 100/2025, [2025] HKCA 593

On Appeal From [2025] HKCFI 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 100 OF 2025

(ON APPEAL FROM HCAL NO 1664 OF 2019)

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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 KW Lung (“the Judge”) dated 18 February 2025 ([2025] HKCFI 402)(“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 22 March 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 21 August 2017 (“the Director’s Decision”) refusing his non-refoulement claim.

2.  On 4 March 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.  He last entered Hong Kong illegally on 22 August 2015.  He surrendered to the Immigration Department on 25 August 2015.  On the same day, he raised a non‑refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [8] 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 1 September 2017.  After considering the evidence, the Board considered it proper to determine his appeal on paper.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [12] ‑ [13] of the Leave Decision.  Essentially, the Board found that the applicant’s evidence was internally inconsistent and was very scant in relation to the alleged threats made by his uncle.  The Board also found that it would not be unduly harsh for the applicant to internally relocate and support himself.  Accordingly, his non-refoulement claim failed on all applicable grounds and his appeal was dismissed.

THE JUDGE’S DECISION

6.  On 17 June 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  In essence, he disagreed with the Board’s Decision and alleged that the Board’s assessment was based on subjective perception and was thus wrong. He also alleged that the Board failed to take into account the corruption situation of the Vietnamese government.  Accordingly, the Board’s assessment as to his risk of harm under the applicable grounds was wrong and that the lack of oral hearing was also procedurally unfair to him.

7.  By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were set out at [16] ‑ [29] of the Leave Decision.  In essence, the Judge found that the Board’s assessment of the evidence was without fault and that it was based on objective evidence that the Board found the reasonable availability of state protection to the applicant.  The Board’s Decision was based on proper assessment of all the available evidence before it and there was no error.  As to the lack of oral hearing, the Judge also found that the Board had duly considered evidence as well as the principles laid down in ST v Betty Kwan [2014] 4 HKLRD 277.  There was no procedural unfairness to the applicant.  As the applicant’s intended judicial review was not reasonably arguable, the Judge dismissed his application.

THIS APPEAL

8.  In his Notice of Appeal filed on 4 March 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.

9.  In his supporting affirmation filed on 4 March 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.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 4 March 2025, the applicant failed to lodge any written submissions.

DISCUSSION

11.  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)]).

12.  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.

13.  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.

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

15.  This judgment is given in English as both the Notice of Appeal and the Affirmation filed in support of the appeal are all written in English.  If he finds it necessary, the applicant can apply to the court to have this judgment interpreted to him in court at a pre-fixed time.