Re Le Van Tuan

CACV 16/2025, [2025] HKCA 602

On Appeal From [2024] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 16 OF 2025

(ON APPEAL FROM HCAL NO 2199 OF 2019)

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J U D G M E N T

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

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 31 December 2024 ([2024] HKCFI 3262)(“the Leave Decision”), refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 19 July 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”)  dated 21 March 2017 (“the Director’s Decision”)  refusing his non-refoulement claim.

2.On 13 January 2025, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.The applicant is a national of Vietnam.  He entered Hong Kong illegally sometime in 17 August 2015.  He surrendered to the Immigration Department on 19 August 2015.  On the same day, he raised a non-refoulement claim for protection on the basis that, if refouled, he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [4] - [8] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.Subsequently, the applicant appealed against the Director’s Decision to the Board.  The applicant attended an oral hearing before the Board on 21 June 2019.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  In essence, the Board considered that his alleged injuries did not reach the requisite level of severity.  The dispute between him and his creditor was private in nature and there was no evidence of any state involvement.  After consideration of the Country of Origin information (“COI”), the Board considered that internal relocation would be reasonably available to the applicant.  Accordingly, his non-refoulement claim failed on all applicable grounds and his appeal was dismissed.  See [12] - [13] of the Leave Decision.

THE JUDGE’S DECISION

6.On 2 August 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No ground of challenge was advanced in his Form 86.  In his supporting affirmation, he stated that the Board failed to understand the corruption situation in the Vietnamese government and that the Board had erroneously assessed his risk of harm.  He alleged that there were news reports on local creditors harming people and he feared that he would also be harmed upon refoulement.

7.On 30 October 2024, the applicant failed to attend the oral hearing before the Judge.  The Judge proceeded to consider and determine his application on paper.

8.By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were set out at [16] - [24] of the Leave Decision.  In essence, the Judge found that the Board had duly taken into account the alleged corruption situation in Vietnam and that it was open for the Board to find on the evidence that the applicant’s alleged harm failed to reach the requisite level of severity.  The Board had properly considered all the evidence including the COI and there was no ground to interfere with the Board’s Decision or its findings of fact. Accordingly, the applicant’s intended judicial review was not reasonably arguable and the Judge refused to grant him leave to apply for judicial review.

THIS APPEAL

9.In his Notice of Appeal filed on 13 January 2025, the applicant mainly complained that, if refouled, his life would be seriously threatened by his creditor and local gangsters as it might be possible for them to locate him.  He also claimed that internal relocation would be completely unfeasible as he was not an active person and there would be no guarantee that he would be able to adapt to the new place. He also complained that the Immigration Department failed to consider his human rights under various legislations but failed to particularise his complaint.

10.Contrary to the directions of the Registrar of Civil Appeals dated 13 January 2025, the applicant failed to lodge any written submissions.

DISCUSSION

11.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.In our view, the applicant’s appeal has no substance.  At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he failed to identify any error with specific particulars against the Leave Decision.  Accordingly, his assertions are not valid grounds of appeal.

13.In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

14.For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.

15.This judgment is given in English as both the Notice of Appeal and the Affirmation filed in support of the appeal are all written in English.  If he finds it necessary, the applicant can apply to the court to have this judgment interpreted to him in court at a pre-fixed time.

The applicant acting in person