NGUYEN VAN MINH v. DIRECTOR OF IMMIGRATION

CACV 253/2023, [2025] HKCA 800

On Appeal From [2023] HKCFI 2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 253 OF 2023

(ON APPEAL FROM HCAL NO 657 OF 2023)

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J U D G M E N T

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Hon Chow 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 4 August 2023 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 13 February 2023 refusing to allow him to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director, and his appeal against the rejection had been dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 6 June 2017 upon his application for withdrawal of the appeal.

BACKGROUND

2.  The Applicant is a national of Vietnam. He claimed that he entered Hong Kong illegally on 2 September 2015. On 7 September 2015, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his father’s creditor (Long) for being unable to repay his father’s outstanding debts.

3.  By a Notice of Decision dated 13 April 2017 (“the 2017 Decision”), the Director rejected the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the 2017 Decision to the Board. Pending the determination of his appeal, the Applicant requested to withdraw his case by a document titled “Detainee Submission Sheet” (received by the Board on 6 June 2017) on the ground that he already settled his problem in Vietnam and his mother was seriously ill there.

5.  On 6 June 2017, the Board made an order dismissing the Applicant’s appeal, and confirmed the 2017 Decision. On 20 June 2017, the Applicant was repatriated to Vietnam.

6.  Nearly five years later, on 12 June 2022, the Applicant was arrested by the police in Hong Kong. He claimed that he had re-entered Hong Kong illegally on 11 June 2021. On 28 June 2022, he was convicted of the offence of overstaying in Hong Kong and sentenced to 15-month imprisonment. While serving his sentence, he requested in writing to the Immigration Department to make a subsequent claim for non-refoulement protection on 20 December 2022. His intended subsequent claim was made on the basis that, if refouled, he would be harmed or killed by his creditor (Tran Xuan Huy) over his outstanding gambling debts. Details of the Applicant’s intended subsequent claim have been summarised by the Judge at §6 of the CALL-1 Form.

7.  By a Notice of Decision dated 13 February 2023 (“the 2023 Decision”), the Director refused to allow the Applicant to make a subsequent claim. The Director’s reasons for the 2023 Decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“By [the 2023 Decision] the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same in nature as that of his previous claim as a private monetary dispute with his creditor without any state or official involvement, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given that any risk arising therefrom will similarly be negated by state protection and internal relocation being available to the Applicant upon his return to Vietnam as correctly found in his previous claim.”

THE JUDGE’S DECISION

8.  On 5 May 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the 2023 Decision. Although the Applicant referred to both the “Torture Claims Appeal Board” and the “Immigration Department” as proposed respondents, the decision in respect of which relief was sought was identified as being dated “13/2/2023” (ie the 2023 Decision). No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant stated that he did not agree with the decision of the Torture Claim Appeal Board, and he could not go back to his home country because his life would be in danger there.

9.  On 4 August 2023, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[11] …having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse his leave application.”

THIS APPEAL

10.  In his Notice of Appeal filed on 14 August 2023, the Applicant repeats his claim that his life will be seriously threatened, and he will probably die if he returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

11.  In his affirmation of the same date, the Applicant states that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he fails to identify what that ground might be. He also states that he has been informed that the Director and the Board “did not see the grounds to reverse their decisions”, without giving any further explanation or particulars.

12.  On 14 August 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing. He failed to file any written submissions in support of his appeal, contrary to the directions given by the Registrar of Civil Appeals dated 14 August 2023.

13.  By a letter dated 20 May 2024, the Department of Justice (for the Director) informed the Court that the Applicant could not be contacted by the Director, and his current whereabouts were unknown. For this reason and in view of the consent given by the Applicant to his appeal being disposed of on paper without an oral hearing, on 21 July 2025, the Court varied the previous direction given on 18 March 2024 that there be an oral hearing of the Applicant’s appeal, and directed that the appeal be dealt with on paper.

DISCUSSION

14.  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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

15.  The matters raised in the Applicant’s Notice of Appeal and supporting affirmation are general assertions without particulars, and most of them are directed at the Director’s decision. They do not relate to the Judge’s reasons for refusing to grant him leave to apply for judicial review and do not constitute any valid ground of appeal against the Judge’s decision. In any event, they are devoid of merit.

16.  As pointed out by the Judge, in coming to the conclusion that the conditions under Section 37ZO(2) of the Immigration Ordinance were not satisfied, the Director took the view that the basis of the Applicant’s intended subsequent claim was essentially the same in nature as that of his previous claim, namely, a private monetary dispute with a creditor without any state or official involvement. Based on the evidence and country of origin information before him, the Director found that state protection and internal relocation remained viable options to the Applicant upon refoulement notwithstanding his claimed fear of harm from the new creditor (see §§11-15 of the 2023 Decision). It is well-established that the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the 2023 Decision is shown in the present case.

17.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

18.  The Applicant’s appeal has no merits, and is dismissed.

19.  This judgment is written in English although the 2023 Decision of the Director was written in Chinese, because the Applicant’s Notice of Appeal and affirmation are both written in English. If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.