Tran Binh Luan v. Torture Claims Appeal Board

CACV 513/2020

[2021] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 513 OF 2020

(ON APPEAL FROM HCAL NO 725 OF 2018)

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Before: Hon Kwan VP, Cheung JAand Chu JA in Court

Date of Judgment: 30 July 2021

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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.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 10 May 2021 ([2021] HKCA 645). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020 ([2020] HKCFI 2278) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 18 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction.  The applicant failed to lodge written submissions as directed.  Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Vietnam.  He had previously been repatriated to his home country from Hong Kong back in 2010.  He entered Hong Kong illegally again on 16 June 2014 and was arrested by the police on 23 June 2014.  He raised a non-refoulement claim on 4 July 2014 on the basis that he and his wife (the appellant in CACV 512/2020) will be harmed or killed by their creditors if they return to Vietnam as they are unable to repay the debts. 

4.The non-refoulement claims of the applicant and his wife were rejected by the Director of Immigration (“the Director”) on 25 April 2017. Their appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 2 March 2018. 

5.The applicant and his wife filed their respective Form 86 on 25 April 2018 to seek leave to apply for judicial review against the decision of the Board.  Their applications were refused by DHCJ Bruno Chan on 15 September 2020.

6.On 25 September 2020, the applicant filed his notice of appeal against the decision of DHCJ Bruno Chan.  His appeal was dealt with on paper because he has consented to the disposal of his appeal on paper by the court without an oral hearing.  It was dismissed by the Court of Appeal on 10 May 2021.  The applicant filed a Notice of Motion on 17 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing his application for leave for judicial review and the appeal;

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

Analysis and disposition

8.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.

9.The applicant’s grounds are wholly without basis as they are just bare assertions without particulars or elaboration.  The decisions of the Director are not susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549.  Moreover, the applicant also failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal. 

10.Besides, the applicant has failed to 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). 

11.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 17 May 2021.

The Applicant (Appellant), acting in person