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CAMP 140/2021
[2021] HKCA 1850
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 140 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 591 OF 2018)
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| RE: |
TRAN VAN THANH |
Applicant |
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Before: Hon Au and Chow JJA in Court
Date of Judgment: 9 December 2021
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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 a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 11 August 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 1895). An earlier application for extension of time to appeal was refused by the Deputy Judge on 29 April 2021 (“the EOT Decision”) ([2021] HKCFI 1071).
2. The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 11 May 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 August 2017 rejecting his 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 this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
Background
4. The applicant is a national of Vietnam. He entered Hong Kong illegally and surrendered to the Immigration Department on 23 September 2015. He raised a non-refoulement claim by way of a written signification dated 23 September 2015 on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan. Details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [7] of the Leave Decision.
5. By a Notice of Decision dated 18 August 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].
6. On 28 August 2017, the applicant appealed against the Director’s Decision to the Board. He attended an oral hearing before the Board on 16 March 2018 and gave evidence. The Board dismissed his appeal on 11 May 2018 and confirmed the Director’s Decision. The Board found inconsistencies in the applicant’s evidence and discrepancies in relation to the loan agreement and the alleged threatening and assaulting incidents, and considered his claim incredible. Having assessed the evidence, the Board also considered that state protection and internal relocation would be available and the applicant failed to establish his claim on all applicable grounds.
The Leave Decision
7. On 10 April 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review against the Board’s Decision before the same was handed down. In his Form 86 and supporting affirmation, he repeated the alleged factual basis of his non‑refoulement claim and did not put forward any proper ground for his intended challenge. As he did not request for an oral hearing, the Deputy Judge considered his application on paper.
8. By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:
“12. However, even before the Board handed down its decision, on 10 April 2018 the Applicant already filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would be harmed or killed by his creditor for failing to repay his loan if refouled to Vietnam 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 procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.
13. 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.
14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.
15. 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.
16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
The EOT Decision
9. Under Order 53, rule 3(4) of the RHC, the applicant 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 applicant within the 14-day period.
10. On 2 November 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”) together with a supporting affirmation. By then, he was more than one month late. The Deputy Judge heard his application on 13 April 2021.
11. By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal. The Deputy Judge considered the applicant’s delay as substantial[5], for which the applicant explained in his supporting affirmation that he initially did not have sufficient financial means to seek legal assistance to prepare the necessary documents for his intended appeal, but when he was able to do, he was already out of time. The Deputy Judge noted that the Leave Decision was sent on the same day to the applicant’s last reported address which was the same as the one provided in his EOT Summons and it was not returned through undelivered post. The Deputy Judge considered that the applicant had failed to provide any good reason for his substantial delay and in the absence of any error in the decision being clearly and properly identified by the applicant, there was no prospect of success in his intended appeal. It would also be futile to extend time for a hopeless appeal. Accordingly, the EOT Summons was dismissed.
The Present Application
12. By a summons dated 3 May 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court. In the supporting affirmation of the same date, he only repeated the alleged factual basis of his non-refoulement claim that given his failure to repay his loan, his creditor assaulted him and he came to Hong Kong owing to his fear of being killed. He did not point out any errors in the Leave Decision.
13. In his written submissions lodged on 10 June 2021, the applicant again repeated the alleged factual basis of his non-refoulement claim that he left Vietnam to came to Hong Kong owing to his fear of being harmed or killed by his creditor as the applicant was unable to repay his loan arising from his failed seafood business.
Discussion
14. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].
15. We agree with the Deputy Judge and consider the applicant’s delay of more than one month as substantial and the applicant failed to provide any cogent explanation for his delay.
16. As such, the Court will only grant extension of time if his 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 will focus on the decision of the Deputy Judge and will 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, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge. He only repeated the alleged factual basis of his non-refoulement claim which are all general and bare assertions. They do not constitute viable grounds of appeal. The intended appeal must fail on this basis alone.
19. As the applicant failed to provide any proper ground of appeal, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the summons dated 3 May 2021 dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] At [2] of the EOT Decision, the Deputy Judge observed that the 14-day period for the applicant to file his appeal under Order 53, rule 3(4) of the RHC ended on 25 August 2020 and hence the applicant was late for more than two months with his intended appeal. The Deputy Judge did not to take into account the Court’s Summer Vacation in the month of August (see section 29(2) of the High Court Ordinance and Order 64, rule 1(1) of the RHC), which is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal by reason of section 31(1) of the High Court Ordinance, Cap 4. Accordingly, the deadline for the applicant to file the Notice of Appeal was 14 September 2020, and the applicant was instead late for over one month with his intended appeal.
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