Re Nguyen Xuan Chung

CACV 544/2024, [2025] HKCA 621

On Appeal From [2024] HKCFI 3382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 544 OF 2024

(ON APPEAL FROM HCAL NO 2157 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 Bruno Chan (“the Judge”) dated 3 December 2024 ([2024] HKCFI 3382)(“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 24 July 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 8 April 2019 (“the Director’s Decision”) refusing his non‑refoulement claim.

2.On 12 December 2024, 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 October 2018.  On 3 December 2018, 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 [1] ‑ [5] 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.The applicant appealed against the Director’s Decision to the Board on 24 April 2019.  After considering the evidence and materials before it, the Board decided to determine the appeal on paper.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon him return to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.On 29 July 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 merely stated that he did not agree with the Board’s Decision.  As the applicant did not request for an oral hearing, the Judge considered and determined his application on paper.

7.By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were set out at [10] ‑ [14] of the Leave Decision:

“10.  On 29 July 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he does not agree with the Board’s decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

THIS APPEAL

8.In his Notice of Appeal filed on 12 December 2024, 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.

9.In his supporting affirmation filed on 12 December 2024, the applicant claimed that he understood that there “was a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”.  Again, the applicant failed to particularise what the alleged ground was.

10.Contrary to the directions of the Registrar of Civil Appeals dated 12 December 2024, 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.