RE TRAN THI NGUYEN

CACV 442/2022, [2024] HKCA 129

On Appeal From [2022] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 442 OF 2022

(ON APPEAL FROM HCAL NO. 2370 OF 2018)

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J U D G M E N T

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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 1 November 2022 in which he refused to grant leave to her to apply for judicial review.

2.  By written confirmation of the applicant dated 7 November 2022, the applicant consented to this appeal being dealt with on paper. The applicant failed to lodge the skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 7 November 2022. We would deal with this appeal on paper.

2) Background

3.  The applicant is a national of Vietnam. In December 2013 the applicant left Vietnam and entered the Mainland. She then entered Hong Kong illegally and was brought into custody in January 2014. In March 2014, she applied for non-refoulement protection.

4.  The basis of the applicant’s claim is that she would be harmed or killed by a creditor by the name HIEU due to non-repayment of a loan and her husband was violent towards her.

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

3) The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 25 August 2016. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director further decided against the applicant’s right to life claim on 3 March 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4) The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 2 September 2016. After a hearing held on 1 June 2018, the Board dismissed the applicant’s appeal on 19 October 2018 (‘the Board’s Decision’).

9.  The Board found that the applicant did not present herself as either believable or unbelievable but it held ‘demeanour is rarely very useful. Her story is internally adequately consistent as to the money lending, the loan collection incidents and domestic violence.’ It held that the problem the applicant faced was that it was purely a private matter relating to repayment of an outstanding loan. The applicant agreed during the hearing before the Board that HIEU no longer visited her home after her husband agreed to work for HIEU. After the applicant moved back to live with her parents, the applicant lost contact with her husband which would then mean no more domestic violence from the husband[1]. Avoidance of loan repayment and domestic violence are not convention reasons for non-refoulement[2]. On totality of the evidence, the Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled to Vietnam[3]. She failed on all grounds.

5) Decision of the Judge

10.  The applicant filed her Form 86 supported with grounds which simply stated that she wished to extend her duration of stay. In her supporting affirmation, she stated that she carried out fishery business in Vietnam and borrowed money from the triads. The triads attacked her and she fled to Hong Kong. She wished to stay in Hong Kong for a while and she promised to return to Vietnam in the future.

11.  The Judge held there were no valid grounds by the applicant to challenge the Board’s decision. There was no reasonably arguable basis to challenge the Board’s decision.

6) Grounds of appeal

12.  The applicant in the notice of appeal stated that if she returned to Vietnam her life will be seriously threatened because the creditors are violent and cruel. She cannot change to another location to live because her health was not good. She believed it was possible for the creditor to find out where she lives if she returns.

13.  In the applicant’s affirmation, she stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.

7) Our view

14.  We are of the view that the applicant’s grounds of appeal consist of bare allegations without particulars or specifics. The 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].

15.  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.

16.  We see no basis to disturb the Deputy Judge’s decision. Accordingly, the appeal is dismissed.