HOANG TRONG GIANG v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 335/2022

[2022] HKCA 1802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 335 OF 2022

(ON APPEAL FROM HCAL NO 1648 OF 2021)

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J U D G M E N T

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

1.  On 19 August 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 16 February 2022 (“the Order”) refusing to grant him leave to apply for judicial review.

BACKGROUND

2.  On 6 March 2014, the Applicant, a national of Vietnam, entered Hong Kong illegally and lodged a non-refoulement claim. By a notice of decision dated 17 November 2016, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim. The Applicant was repatriated back to Vietnam on 6 February 2018. Subsequently, he re-entered Hong Kong illegally and was arrested by the police on 19 September 2021. On 27 September 2021, he lodged a second non-refoulement claim, which was rejected by the Director on 1 November 2021 (“the Director’s Decision”). The Director’s Decision at §13 stated as follows:

“...我們不接受你的情況在先前的聲請獲最終裁定後已有重大改變及該項改變在與先前曾為支持先前的聲請而提交的材料一併考慮下，會令後繼聲請有實際的成功機會。因此，您的請求被拒絕，即是，本處決定你不可根據統一審核機制提出後繼聲請。(…we do not accept that there has been a material change in your circumstances since the final determination of your prior claim and that such change, when considered in conjunction with the materials previously submitted in support of the prior claim, would give the subsequent claim a realistic chance of success. Therefore, your request is denied, that is, we have determined that you may not file a subsequent claim under the Uniform Screening Mechanism.)”

3.  On 6 December 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review. In the Form 86, the Applicant identified the “proposed respondent” as “Immigration Department torture claim appeal board”, and the date of the “Judgment, order or other proceeding in respect of which relief is sought” as “1-11-2021”. He did not, however, give any intended ground of judicial review in the Form 86. In his affirmation filed in support of the application, he merely stated:

“I don’t agree Immigration Department for TCAB reject my case, I do JR review my case. I cannot come back my home country because I will danger to my life”.

THE JUDGE’S DECISION

4.  On 16 February 2022, the Judge dealt with the leave application on paper, and refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[4] The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board. If the Applicant is not satisfied with the decision of the Director in the Notice, he should have invoked those procedures; but he has not. Had he done so, the Board would have issued a decision which would have superseded the Director’s decisions in the 2021 Notice. Hence, the Director’s decision in his notice of decision is not susceptible to judicial review: Re Moshsin Ali. It would be an abuse of process by by-passing the Board to seek judicial review of the decision of the Director in the 2021 Notice.

[5] Under section 37ZS of the Immigration Ordinance, a person who wishes to appeal against a decision in the Director’s notice of decision must file with the Board a notice of appeal within 14 days after notice of the decision is given to him unless late filing of the notice is allowed by the Board under section 37ZT(3). There are provisions under the Ordinance governing the late filing and appeal procedures. As the Notice was issued on 1 November 2021, the time for lodging an appeal to the Board expired on 15 November 2021.

[6] As the decision of the Director in the 2021 Notice is not susceptible to judicial review and the alleged Decision of the Board does not in fact exist, the application for leave to apply for judicial review of these decisions must be dismissed.”

5.  On 11 May 2022, the Applicant filed a summons for extension of time to appeal the Order.

6.  On 5 August 2022, the Judge granted the Applicant an extension of time to appeal the Order for the following reasons:

“[2] By 11 May 2022 when the Summons was filed, 84 days had lapsed since the date of the Order. This application is 70 days out of time, which is very substantial in the context of a fourteen-day appeal period. His explanation for the delay is that he had contracted Covid-19 virus and was granted 7 days’ sick leave including two days of hospitalization. Then he engaged himself in self-isolation because he had been in contact with many confirmed Covid-19 patients. This Court does not accept his explanation as credible. In addition, despite the Court’s direction, he failed to furnish his grounds of the intended appeal.

[3] In his leave application, he named the proposed respondent as ‘Immigration Department Torture Claim Appeal Board’ and identified the decision in respect of which leave to apply for judicial review was sought as a decision dated 1 November 2021, which this Court understood as referring to a decision of the Board dated 1 November 2021. Upon the Board’s confirmation that no such decision had been made relating to the Applicant, this Court dismissed his leave application on the ground that the decision sought to be reviewed does not exist.

[4] It now transpires that his leave application may be referable to the Notice of Decision of the Director of Immigration refusing his request to make a subsequent claim. As this Court has not considered his application as such, he may have an arguable appeal against this Court’s Order. Thus, despite his delay and failure to furnish his grounds of the intended appeal, extension of time is granted for him to file his notice of appeal within fourteen days from the date of this decision with a recommendation that his appeal be allowed and his leave application be remitted to this Court for determination.”

THIS APPEAL

7.  In his Notice of Appeal dated 19 August 2022, the Applicant put forward the following ground(s) of appeal:

“Because of my limited knowledge, I do not know English or Chinese and moreover, I did not understand the proceedings of the High Court, so I mistakenly entered the Putative respondent party as Torture Claims Appeal Board / Non-refoulement Claims Petition Office in the application for judicial review. In fact, I would like to appeal the decision of the Immigration Department regarding my Subsequent Claim refusal which was issued on 1 November 2021 …”.

8.  In his supporting affirmation dated the same date, the Applicant repeated the aforesaid ground(s) of appeal.

9.  On 19 August 2022, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.  The Applicant failed to comply with the directions of the Registrar of Civil Appeals on 19 August 2022 requiring him to lodge written submissions on or before 2 September 2022. Accordingly, he is deemed to have abandoned his right to rely on written submissions, and we shall deal with the appeal on the basis of the materials already filed with the Court.

DISCUSSION

11.  On the footing that the subject matter of the Applicant’s intended application for judicial review is the Director’s Decision refusing to permit him to make a subsequent claim, he has failed to put forward any ground to review the Director’s Decision, whether in the proceedings below or in the present appeal. Thus, although the Judge did not appreciate, in his decision dated 16 February 2022, that the Applicant’s application concerned a decision of the Director refusing to permit him to make a subsequent claim, it is clear that the intended judicial review was not reasonably arguable, and did not have any realistic prospect of success. That being so, there would be no basis to allow the Applicant’s appeal or grant him leave to apply for judicial review of the Director’s Decision.

12.  The Applicant’s appeal has no merits, and is dismissed.

13.  The Applicant may, if required, make an appointment with the Clerk of this Court for this Judgment to be orally interpreted to him.