PHAM VAN DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 352/2023, [2024] HKCA 1088

On appeal from [2023] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL AEPPAL NO 352 OF 2023

(ON APPEAL FROM HCAL NO 1184 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 31 October 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 8 November 2023.

2.  The applicant is a national of Vietnam. He entered Hong Kong as a visitor on 22 November 2013 and subsequently overstayed. He surrendered to the Immigration Department on 2 December 2013. On 17 March 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be arrested by the Vietnamese police and authorities for various offences he had committed.

The Director’s decision

3.  By a Notice of Decision dated 26 December 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director considered that the relevant officials did not have real intention to harm the applicant as they had sufficient opportunity to cause serious harm to him but did not do so. The applicant did not encounter any difficulty in applying for a passport and leaving Vietnam for Hong Kong. The Director further considered that even if the applicant would be prosecuted in Vietnam, it is caused by his violation of the law in Vietnam. The Director found there is nothing to support the applicant’s assertions that he would not have a fair trial or that he would face death penalty. The Director also held that the availability of state protection in Vietnam further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 18 February 2019. The Board considered there is no evidence of severe pain and physical or mental suffering reaching the minimum level of severity in the applicant’s case. The penalty for the relevant offences in Vietnam is far from heavy and disproportionate. The Board observed that the applicant has not suffered serious ill-treatment or serious harm which would place him at any substantial future risk, despite several encounters with the committee officials. The Board concluded that the applicant failed to establish his claim on all applicable grounds and rejected the appeal on 11 April 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 3 May 2019 to seek leave to apply for judicial review against the decision of the Board. In his supporting affirmation, he stated that his life will be in danger if he is refouled to Vietnam and he is afraid that his debtor and his subordinates would inflict more serious harm or even kill him because he is insolvent.

The judge’s decision

7.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request for an oral hearing. The judge held that the applicant does not have any valid ground to challenge the Board’s decision. The judge also found that the applicant did not owe any money to a creditor so there is no reason why he should fear the creditor or his subordinates. As there is no realistic prospect of success in the applicant’s intended application for judicial review, the judge dismissed the leave application on 31 October 2023.

Grounds of appeal

8.  In the Notice of Appeal filed on 8 November 2023, the applicant stated his grounds of appeal as follows:

(1)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

9.  The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 8 November 2023 requiring the applicant to lodge skeleton argument on or before 22 November 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions by the prescribed time in this appeal.

Legal Principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

12.  The applicant’s grounds are just bare assertions without evidence in support. He failed to point out any error or unfairness in the judge’s decision. It has not been demonstrated that the judge had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. There is no viable ground to reverse the judge’s decision on appeal.

13.  As the appeal is devoid of merit, we dismiss it accordingly.