RE NGUYEN VAN TUNG

CACV 308/2023 , [2024] HKCA 727

On Appeal From [2023] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 308 OF 2023

(ON APPEAL FROM HCAL NO. 2318 OF 2020)

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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 Bruno Chan of 28 September 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 6 October 2023.

2.  Despite the directions of the Registrar of Civil Appeals dated 6 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. 

3.  By a letter dated 23 May 2024 the applicant stated that he would like to withdraw his appeal.

2)  Factual background

4.  The applicant is a national of Vietnam.  The applicant’s application relates to his second claim for non-refoulement before the Director. 　The applicant first came to Hong Kong in October 2017. 　In December 2017, he first claimed for non-refoulement, and this claim was rejected by the Director of Immigration (‘the Director’)  on 19 March 2018 on all applicable grounds.  In April 2018, the applicant filed his notice of appeal before the Board but this was subsequently withdrawn.  He was deported back to Vietnam in November 2018. In November 2019, the applicant came back to Hong Kong again and applied again for non-refoulement.  The Director allowed the applicant to take out his subsequent claim pursuant to section 37ZO of the Immigration Ordinance (Cap. 115).  For both the first and second non-refoulement applications the applicant was legally assisted.  In June 2020, the Director refused the applicant’s second subsequent application for non-refoulement under all applicable grounds.  The applicant appealed before the Board in July 2020.  An oral hearing was conducted in September 2020[1].

5.  The basis of the applicant’s claim is that he would be harmed or killed by a customer called Tran Van Nam due to the applicant selling Tran’s motorcycle since Tran failed to repay money on bailment[2].  

6.  The background facts have been summarized in the decision of the Judge at [2]-[8].

3)  The Director’s Decisions

7.  The Director decided against the applicant’s first non-refoulement claim on 29 March 2018.  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’).

8.  The Director decided against the applicant’s second subsequent non-refoulement claim on 30 June 2020.  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[4] (‘the Director’s Second Decision’).

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Second Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 10 September 2020, the Board dismissed the applicants’ appeal on 22 September 2020 (‘the Board’s Decision’).

10.  The Board’s reasoning and decision have been summarized in the decision of the Judge at [15].

5)  Decision of the Judge

11.  The applicant filed his Form 86 supported with an affirmation but no grounds of relief were given and he merely stated that he does not agree with the decision as being grossly unfair and unjust without providing details and particulars.

12.  The Judge held that the Court will not usurp the role and decision 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[5].

6)  Grounds of appeal

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

(1)  This is an appeal against the Court of First Instance’s refusal case.

(2)  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 are cruel and violent.

(3)  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.

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

(5)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law.

(6)  The applicant asks the Court of Appeal for a chance to seek justice.

(7)  The appeal should be allowed due to its importance.

14.  The applicant’s grounds of appeal above are predominantly complaints against the Board’s finding of fact which is within the province of the Board.

7)  Our view

15.  We are of the view that 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].

16.  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.

17.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed on the merits. We will also dismiss the appeal on the basis of the applicant’s request to withdraw his appeal.