Ngo Quoc Phuc v. Torture Claims Appeal Board

CACV 521/2020

[2021] HKCA 1256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 521 OF 2020

(ON APPEAL FROM HCAL NO 926 OF 2018)

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Before: Hon Kwan VP, Chu JA and Au JA in Court

Date of Written Submission: 21 May 2021

Date of Judgment: 6 September 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, Chu JA and Au JA) handed down on 23 April 2021 ([2021] HKCA 542). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020 ([2020] HKCFI 2340) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 7 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 21 May 2021.  Having considered his submissions, 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 entered Hong Kong illegally on 23 September 2015 and was arrested by police on the same day.  On 27 September 2015, he raised a non‑refoulement claim on the basis that if he returns to Vietnam he will be harmed or killed by his creditor for failing to repay his debt.

4.His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 20 April 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 20 March 2018.

5.He filed a Form 86 on 24 May 2018 to seek leave to apply for judicial review against the decision of the Board.  DHCJ Bruno Chan dismissed the leave application on 18 September 2020.

6.On 28 September 2020, the applicant filed a notice of appeal against the judge’s decision.  The appeal was dealt with by the Court of Appeal on paper without an oral hearing as the applicant consented to the disposal of his appeal on paper.  The appeal was dismissed by the Court of Appeal on 23 April 2021.  The applicant filed a Notice of Motion on 6 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.

8.His written submissions may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

9.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. 

10.First of all, the applicant’s leave application concerns the Board’s decision rather than the Director’s decision.  In any event, the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant: Re Moshsin Ali^[1].  Therefore, the applicant’s grounds in relation to the judges’ failure to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director are wholly untenable. 

11.Furthermore, the applicant’s submissions are just bare assertions which have already been rejected by the Court of Appeal.  In the present application, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in its decision.

12.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). 

13.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 May 2021.

The Applicant (Appellant), acting in person