Re Luu Van Ly

CACV 205/2023 , [2024] HKCA 725

On Appeal From [2023] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2023

(ON APPEAL FROM HCAL NO. 1997 OF 2020)

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J U D G M E N T

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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 Bruno Chan of 16 June 2023 in which he refused to grant leave to him to apply for judicial review.

2.By written confirmation of the applicant dated 30 June 2023, the applicant consented to the appeal being disposed of on paper without oral hearing.  By directions of the Registrar of Civil Appeal dated 30 June 2023, the applicant was to file his written submission by 14 July 2023, failing which he will be deemed to have abandoned his right to rely on written submission.  No written submissions were lodged by the applicant.  We will deal with this appeal based on the available documents.

2)  Factual background

3.The applicant is a national of Vietnam.  In 1997, the applicant entered Hong Kong illegally and was subsequently arrested and deported back to Vietnam.  In 2019, the applicant again came to Hong Kong illegally and was arrested and sentenced to 18 months imprisonment[1].  The applicant raised his non-refoulement claim on 25 November 2019[2].

4.The basis of the applicant’s claim is that he would be harmed or killed by a moneylender Mr Nguyen Van Long and his men as there is a loan dispute with him[3].

5.The background facts have been summarized in the decision of the Judge at [2]-[4].

3)  The Director’s Decision

6.The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 26 May 2020. The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’)  as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 11 August 2020, the Board dismissed the applicant’s appeal on 8 September 2020 (‘the Board’s Decision’).

8.The Board’s findings have been summarized in the decision of the Judge at [8].

5)  Decision of the Judge

9.The applicant filed his Form 86 with supporting affirmation but no ground for seeking relief was provided, and the applicant simply stated that he does not agree with the decision which was grossly unfair and unjust without particulars as to how it was so, nor did the applicant request an oral hearing before the Judge.  No error of law or irrationality or procedural unfairness in the Board’s decision could be found.  There was no reasonably arguable basis for the intended challenge[4].

6)  Grounds of appeal

10.The applicant in the notice of appeal stated the following in summary :

(1)  This is an appeal against the refusal of the Court of First Instance;

(2)  If the applicant is refouled to Vietnam he will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong.  Most of them are cruel and violent;

(3)  The applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle.  The applicant’s health is not good.  There is no guarantee that the applicant can adapt to the new place;

(4)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find the applicant;

(5)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law;

(6)  The applicant asks the Court of Appeal for a chance to seek justice; and

(7)  Due to the importance of the appeal, the appeal should be allowed.

11.The above grounds of appeal are predominantly complaints against the Board’s finding of fact which are within the province of the Board.

12.In the applicant’s supporting affirmation, he stated a summary of the following which are bare assertions without any particulars or explanation :

(1)  A good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review;

(2)  The decision makers ‘did not see the grounds to reserve their decision’; and

(3)  The applicant requests the Court to exercise its discretion to allow the applicant’s appeal.

7)  Our view

13.We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics.  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 Deputy Judge in assessing the Board’s Decision.

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

Applicant, unrepresented, acting in person