Re Nguyen Viet Cong

CACV 415/2023, [2024] HKCA 829

On Appeal From [2023] HKCFI 3162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 415 OF 2023

(ON APPEAL FROM HCAL NO. 1586 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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 7 December 2023 in which he refused to grant leave to him to apply for judicial review.

2.The applicant consented on 15 December 2023 for the appeal to be determined on the paper without an oral hearing.  No written submission was lodged to support his appeal.

2)  Background

3.The applicant is a national of Vietnam.  In September 2014, the applicant travelled by bus from Vietnam to the Mainland.  In October 2014, the applicant hid inside a lorry from Shenzhen and entered Hong Kong illegally. He lodged a non-refoulement claim on 6 October 2014[1].

4.The basis of the applicant’s claim is that he would be harmed or killed by a moneylender named Phong and his underlings if he returns due to non-repayment of a loan[2].

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

3)  The Director’s Decision

6.The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 29 May 2017.  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[3] (‘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 19 February 2019, the Board dismissed the applicant’s appeal on 6 June 2019 (‘the Board’s Decision’).

8.The Board had no doubt that the account the claimant had given was a complete invention and was not true.  It found that the claimant could not even give the most basic details such as details of the business, the amount of money borrowed, interest rate and so on[4]. There were great inconsistencies between the written evidence and the oral evidence of the applicant.  For example, in his written evidence the applicant stated he had no job, whereas in the hearing the applicant stated that he was a casual worker and working 11 months out of a year[5]. The Board found other inconsistencies which defied common sense, such as the applicant not knowing the reason why his mother was arrested in Hong Kong[6], or that the applicant comes from a poor family without sufficient food but then he has real property[7], or that he frequently changed his case.  This includes the applicant first saying he owed the moneylenders’ money, then it was his father who owed the money[8]. The Board found the applicant not to be a witness of truth[9].

5)  Decision of the Judge

9.The applicant filed his Form 86 and supporting affirmation on 11 June 2019 but no proper ground for seeking relief was given[10].

10.The Judge held that the applicant had no reasonably arguable basis for the intended challenge.  There was no error of law or procedural unfairness in the Board’s Decision.  The applicant has no realistic prospect of success in the intended judicial review application[11].

6)  Grounds of appeal

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

(1)  If the applicant returns to Vietnam it is likely he will be harmed or killed because the creditors and gangsters there are different from those in Hong Kong;

(2)  The Director’s suggestion on re-location is not feasible as the applicant will face difficulties.  The applicant is not an active person, and there is no guarantee that he will be able to adapt to the new place;

(3)  The gangsters’ network is nationwide and it is very likely that they could locate the applicant; and

(4)  The Immigration Department did not consider the applicant’s human rights under the law.

12.The applicant in his affirmation also stated broad and vague assertions including how a good ground of appeal was not necessarily considered at the leave stage for judicial review.

13.On 15 December 2023, the Registrar of Civil Appeals directed that the applicant shall lodge written submissions by 29 December 2023.  The applicant did not comply, and pursuant to the Registrar’s directions, this appeal is dealt with based on the applicant’s available documents.

7)  Our view

14.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].

15.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.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

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

Applicant, unrepresented, acting in person