VU VAN BINH v. TORTURE CLAIMS APPEAL BOARD

CACV 54/2023, [2024] HKCA 1087

On appeal from [2023] HKCFI 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2023

(ON APPEAL FROM HCAL NO 1323 OF 2022)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 11 July 2023 ([2023] HKCA 826). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 17 February 2023 refusing to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 28 July 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper.

3.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 21 January 2020 and surrendered to the Immigration Department on 30 March 2020. He lodged his non-refoulement claim on 27 April 2020 on the basis that he will be harmed or killed by his creditor if he returns to Vietnam.

Grounds of appeal

4.  The applicant stated the following grounds of appeal in his Notice of Motion filed on 14 July 2023:

(1)  It was unsatisfactory for the Court of Appeal to rule that he had no chance of success in reviewing the decision of the Torture Claims Appeal Board.

(2)  If the applicant returns to Vietnam, he will be tortured, beaten or even killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. Most of them are cruel and violent. They disregard the law and are willing to kill.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(4)  The Director of Immigration 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.

Disposition

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The applicant’s grounds in the present application are substantially the same as the ones he advanced in the appeal before the Court of Appeal. The Court of Appeal has duly considered his appeal and given reasons for dismissing the appeal. The applicant failed to identify any particular mistakes in the court’s decision, nor did he identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

7.  We therefore dismiss the Notice of Motion filed on 14 July 2023.