RE DOAN VAN THAI AND ANOTHER

CAMP 185/2021

[2021] HKCA 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 185 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1690 OF 2018)

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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.  By a summons dated 21 May 2021, the applicants applied to this Court for leave to appeal against the order made by Deputy High Court Judge K W Lung (“Deputy Judge”)  dated 25 March 2021 refusing to grant to the applicants an extension of time ([2021] HKCFI 720)  (“EOT Decision”)  to appeal against the Deputy Judge’s earlier order dated 12 May 2020 refusing to grant an extension of time to leave to apply for judicial review and dismissing their application for leave to apply for judicial review ([2020] HKCFI 764)  (“Leave Decision”).

2.  The intended judicial review was directed at the decision dated 4 May 2018 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”), dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 26 April 2017 rejecting their claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine the summons without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicants are husband and wife and are both Vietnamese nationals.  The husband entered Hong Kong illegally on 30 July 2014 and was arrested by the police.  He was referred to the Immigration Department the next day and lodged a non-refoulement claim on 1 August 2014.  The wife came to Hong Kong illegally on 29 May 2015 and lodged a non-refoulement claim on 1 June 2015.

5.  The applicants’ claim was based on an alleged fear that if they were to return to Vietnam, they would be harmed or killed by the creditor because they were unable to repay the loan.  The factual details of the applicants’ claim were summarised by the Deputy Judge in [2] - [4] of the Leave Decision.

6.  By a Notice of Decision dated 26 April 2017, the Director rejected the applicants’ non-refoulement claim.  His decisions covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].  Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicants from the creditor as low.  The Director considered that state protection would be available to the applicants and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

7.  On 10 May 2017, the applicants lodged an appeal to the Board against the Director’s Decision.  After considering their appeal on paper, the Board dismissed their appeal on 4 May 2018 and confirmed the Director’s Decision.  The Board found that the applicants failed to substantiate their claim on the evidence and that internal relocation was an option open to them.

The Leave Decision

8.  On 21 August 2018, the applicants filed a Form 86 and a supporting affirmation to apply for leave for judicial review against the Director’s Decision and the Board’s Decision.  In the Form 86 and the supporting affirmation, the applicants only repeated that they would face a genuine and substantial risk of being subject to torture or even be killed by the creditor and his underlings if returned to Vietnam.  An oral hearing was held on 27 August 2019 which the applicants failed to attend.

9.  By the Leave Decision of 12 May 2020, the Deputy Judge refused to grant an extension of time to leave to apply for judicial review and dismissed their application for leave to apply for judicial review for the following reasons:

“The Director’s Decision

12. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeals and made its Decisions.

13. The applicants has not set out any exceptional circumstances.

14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

15. The applicants’ application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss their application.

The Board’s Decision

16. The Board was right to deal with their appeal on paper under the accepted facts, which would not allow them to claim non-refoulement under the law and Convention.

17. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board had committed any error in its application of the law or in finding of the facts.

18. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicants may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicants within the 14-day period.

11.  On 7 January 2021, the applicants filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, the applicants were seven months late.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicants extension of time to appeal as the applicants only repeated the facts alleged for their non-refoulement claim and did not say they failed to receive the Leave Decision or that the decision was unreasonable.  The Deputy Judge found that the intended appeal had no merits at all and dismissed the EOT Summons.

The Present Application

13.  By a summons dated 21 May 2021, the applicants sought leave from this Court to appeal against the EOT Decision.  In the supporting affirmation dated 21 May 2021, they only reiterated the alleged facts of their non-refoulement claim and that they would be harmed or killed if returned to Vietnam.  They did not put forward any viable grounds of appeal or any reasons for their delay in the summons or the supporting affirmation.  The applicants also failed to comply with the directions given by the Registrar of Civil Appeals on 23 June 2021 to lodge written submissions.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we would treat the present application as a renewed application for extension of time to appeal.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court would have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted: Re Farrukh Zaib [2020] HKCA 408 at [22].

16.  We consider the delay of seven months to be substantial and the applicants have not provided any, let alone any cogent explanation for the delay.  As such, the Court will only grant extension of time if their appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.  In assessing the merit of an intended appeal, this Court would focus on the decision of the Deputy Judge and would only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  Nowhere in the summons or the affirmation both dated 21 May 2021 did the applicants identify any proper grounds of appeal or any errors committed by the Deputy Judge.

19.  As the applicants failed to identify any proper grounds of appeal, there is no merit and no prospect of success in their intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the applicants’ summons dated 21 May 2021 dismissed.