Re Nguyen Quang Hai

CACV 42/2024, [2024] HKCA 394

On Appeal From [2024] HKCFI 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 42 OF 2024

(ON APPEAL FROM HCAL NO. 1604 OF 2019)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge To of 23 January 2024 by which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to his appeal being disposed of on paper in a written confirmation filed on 5 February 2024.

2)  Factual background

2.The applicant is a national of Vietnam.  He alleged that since November 2017 he has been remaining in Hong Kong illegally without the permission of the Immigration Department.  He raised non-refoulement claims on 16 November 2018, 28 November 2018 and 12 December 2018[1].

3.The basis of the applicant’s claim is that he would be harmed or killed by his creditor Nguyen Quang Dung for non-repayment of a loan[2].

4.The background facts have been summarized in the decision of the Judge at [7] to [12].

3)  The Director’s Decisions

5.The Director of Immigration (‘the Director’) decided against the applicant’s claim on 12 February 2019.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 2 May 2019, the Board dismissed the applicant’s appeal on 10 May 2019 (‘the Board’s Decision’).

7.The Board’s findings are summarized in the Judge’s decision at [13] to [20].

8.In summary, the Board found the applicant was not a witness of truth.  The applicant’s case was unbelievable when he said that his business generated VND$900 million in revenue and he had to borrow VND$800 million from creditors[4].  It was also unbelievable that the applicant claims that he had been in business for seven years but cannot produce a single piece of written evidence[5].  The Board did not accept that the applicant had once protested against the government for monetary compensation due to toxic effluent from a nearby factory[6].  The Board found that there are major discrepancies between what was written on the applicant’s claim forms and what was said before the Board hearing on how many times the applicant claimed to have been beaten, or which time it was that the applicant was hung on a tree[7].  The Board found it unbelievable that even after the applicant alleged that he had been branded on the feet by his creditors, he still chose to live in his home for six months without escaping, until there was another verbal warning when the applicant then left his home[8].   The Board found that it was more likely than not that the creditors were using threat to press for repayment rather than having any serious intention to kill the applicant.  The risk of harm upon refoulement was low[9].

5)  Decision of the Judge

9.The applicant filed his Form 86 and affirmation but no grounds for seeking relief were provided.  He simply stated that if he returns his life will be in danger.

10.The Judge held that in the absence of any error of law or procedural unfairness, there is no reasonably arguable basis for the intended challenge.  The Judge also held that the applicant was in fact complaining about the Board’s finding of fact, but no details on grounds of appeal were provided[10].

6)  Grounds of appeal and request for dismissal of appeal

11.In summary the applicant in the notice of appeal stated the following :

(1)  If he is to return to Vietnam he could probably die because Vietnam gangsters are different and are cruel;

(2)  The Director’s suggestion that he should live in another location is unfeasible.  There is no guarantee that he will adapt to the new place;

(3)  The creditors could find him if he returns because they have a nationwide social network; and

(4)  The Immigration Department did not consider his human rights under the law.

12.On 8 April 2024, the High Court Registry received a letter from the Immigration Department enclosing a letter dated 3 April 2024 from the applicant that was purportedly sent to the High Court.  In the letter, the applicant indicated that he wished to withdraw his appeal application.  He stated that his problem in Vietnam has been solved and wished to return. 

7)  Our view

13.We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

14.It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

15.We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

16.This also accords with the applicant’s request to withdraw his appeal.