Re Nguyen Thanh Hai

CACV 13/2022

[2022] HKCA 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 13 OF 2022

(ON APPEAL FROM HCAL 501 OF 2019)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Judgment:  16 September 2022

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.On 10 June 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J) judgment of 16 May 2022 (“the Judgment”) ([2022] HKCA 681). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 31 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3885).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.In his Notice of Motion, the applicant claimed that his life would be seriously threatened if he returned to Vietnam as the creditors and gangsters in Vietnam were cruel and violent and that he would be tortured, beaten or killed. He also asserted that internal relocation would be completely unfeasible as there would be many difficulties and obstacles he would have to face and his health was not good. He also claimed that his near retirement age might disadvantage him in the labour market. He further complained that the Director of Immigration did not consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights and ordered his deportation.

5.In his supporting affirmation filed on 10 June 2022, the applicant stated that the Judgment was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

6.Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

7.In our view, his intended appeal is clearly without substance. At the outset, the allegations made in his Notice of Motion are all directed to the Director of Immigration and the Board and he failed to identify any specific error in the Judgment with sufficient particulars. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. He also had ample opportunities to present and clarify his case before this Court in his appeal.

8.In any event, as stated at [17] of the Judgment, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

9.For these reasons, the applicant’s intended appeal has no merit.

10.Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

11.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12.Accordingly, the Notice of Motion filed on 10 June 2022 is dismissed.

The applicant acting in person