Re Nguyen Duc Hao

CACV 269/2024, [2025] HKCA 183

On Appeal From [2023] HKCFI 2993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2024

(ON APPEAL FROM HCAL NO. 1237 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 KW Lung of 30 November 2023 in 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 by a written confirmation filed on 8 July 2024.  No written submission was lodged to support his appeal.

2.Factual background

2)  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 20 December 2014 via the Mainland, and surrendered to the Immigration Department on 19 January 2015.  The applicant applied for non-refoulement protection by written representation on the same day of his surrender[1].

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

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

3)  The Director’s Decision

5.The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 22 February 2018.  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

6.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 5 March 2019, the Board dismissed the applicant’s appeal on 18 April 2019 (‘the Board’s Decision’).

7.The Board’s reasoning and decision have been summarized in the decision of the Judge at [7]-[9].

5)  Decision(s)  of the Judge

8.The applicant filed his Form 86 supported with an affirmation.  There were various grounds provided in the applicant’s intended challenge.  Details can be referred to the decision of the Judge at [10].

9.The Judge held that the purported harm that the applicant claimed did not reach the minimum level of severity enough to satisfy non-refoulement requirements.  There are country of origin information that the politics of Vietnam are improving in terms of fighting corruption.  The evidence which the applicant brought up before the Board was hearsay and the weight to be attached was limited[4].

10.By summons dated 19 March 2024, the applicant applied for extension of time to appeal.  On 26 June 2024, the Judge granted the application as it was found on the evidence that the Court’s Form CALL-1 did not reach the applicant in the first postage.  The time for the applicant to file notice of appeal was extended to 10 July 2024[5].

6)  Grounds of appeal

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

(1)  The applicant’s life will be in danger if he returns to Vietnam as creditors and gangsters there are cruel and violent and different to those in Hong Kong;

(2)  The Director’s suggestion of the applicant moving to another location is not feasible as the applicant will face many difficulties and obstacles and there is no guarantee that he will adapt;

(3)  The creditors and gangsters that are after the applicant have a nationwide social network and can find the applicant’s residence in Vietnam; and

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

12.In the applicant’s affirmation, the following were stated :

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

(2)  The Director and the Board did not see grounds to reserve their decisions.

7)  Our view

13.We are of the view that the applicant’s appeal is without merits.  The applicant has 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 Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person