RE BUI XUAN PHUC

CAMP 480/2022, [2024] HKCA 1174

On Appeal From [2022] HKCFI 2142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 480 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3011 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 filed on 18 November 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 27 September 2022. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2846) (“the EOT Decision”) against his earlier order dated 15 July 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 2142) (“the Leave Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 7 November 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2017 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 last entered Hong Kong on 11 November 2013 as a visitor and was permitted to remain up to 18 November 2013. Subsequently in 2013, he acquired permission to reside in Hong Kong as a dependent by virtue of a marriage solemnized in Hong Kong. His limit of stay as a dependent was last extended to 17 November 2014. He overstayed since 18 November 2014. He was arrested by the police on 1 January 2015. On 27 January 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a loan shark Thuan for failing to repay his loan. Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] ‑ [4] of the Leave Decision.

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

6.  The applicant appealed the Director’s Decision to the Board. On 12 October 2018, he attended an oral hearing before the Board and gave evidence. On 7 November 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision. After considering the evidence, the Board found that the dispute between the applicant and the alleged loan shark was purely a personal and private matter without any involvement of any public official or any other person acting in an official capacity[5]. The Board also found that the alleged injuries inflicted on the applicant by the alleged loan shark did not attain a minimum level of severity[6]. Having considered the country of origin information (“COI”), the Board found that state protection would be available to the applicant[7]. Accordingly, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 31 December 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was provided in the Form 86. In his supporting affirmation, the applicant stated that the Board underestimated the injuries and cruel treatment he had suffered in Vietnam, and he should be afforded with non‑refoulement protection in Hong Kong on the basis of the imminent danger and threat he would face upon refoulement. As the applicant did not ask for a hearing, the Deputy Judge dealt with his application on paper.

8.  On 15 July 2022, the Deputy Judge refused to grant the applicant leave to apply for judicial review. His reasons were stated at [11] ‑ [16] of the Leave Decision in Chinese. In gist, the Deputy Judge considered that the grounds stated by the applicant in his supporting affirmation were merely his personal opinions without any evidence in support and they were not valid grounds to challenge the Board’s Decision. The Deputy Judge did not find any fault with the Board in reaching the Board’s Decision. Accordingly, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision 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 24 August 2022, the applicant applied by summons together with a supporting affirmation for an extension of time to appeal against the Leave Decision. By that time, he was almost four weeks late with his intended appeal. In his supporting affirmation, the applicant stated that he did not receive the Leave Decision timely because he was detained in prison at the time and it took him time to consult a lawyer.

11.  By the EOT Decision, the Deputy Judge dismissed the applicant’s application, holding that the applicant had failed to raise any valid reason to show that he had any reasonable prospect of success in his intended appeal.

The Present Application

12.  By a summons and a supporting affirmation (attaching a written statement) filed on 18 November 2022 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision. In his summons, he failed to give any reason in support of his application.

13.  In the written statement attached to his supporting affirmation, the applicant stated that he was late in filing his appeal because he was detained and transferred to different prisons and did not receive the court documents timely. He contended that he lacked legal knowledge and had difficulties in consulting his lawyer due to his lawyer’s infection with COVID-19 virus from late October to early November 2022. He disagreed with the Director’s findings that state protection would be available to him and also that his creditor did not have any real intention to seriously harm or kill him. He also contended that internal relocation would be infeasible.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 18 November 2022, the applicant lodged his written submissions on 25 November 2022. In those submissions, the applicant merely repeated what he had stated in his supporting affirmation.

Discussion

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  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].

17.  We consider that the applicant’s delay of almost four weeks is substantial. We note from the court record that the Leave Decision was sent to the applicant’s latest address as confirmed by the Director by way of letter dated 6 July 2022 without being returned. In the premises, the applicant’s allegation that he received the Leave Decision late is nothing but a mere assertion not supported by any evidence.

18.  As such, the Court will only grant extension of time if his intended appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18]

19.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate 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].

20.  The applicant’s intended appeal is clearly without merit. Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars. Most of his arguments in his supporting affirmation and written submissions are directed at the Director. Accordingly, there is no viable ground of appeal and his intended appeal must fail on this alone.

21.  Further, those arguments raised by the applicant are all new grounds. It is well established that this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].

22.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that assessment of evidence, COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. As correctly pointed out by the Deputy Judge, the Board after considering the COI found that state protection would be available to the applicant. The Board was not satisfied that there would be any real risk of harm from his creditor to the applicant upon refoulement, and as such, the Board found it unnecessary to consider the issue of internal relocation in the present case. We agree with the Deputy Judge that there was no fault in the Board’s Decision and we see no basis to interfere with the Leave Decision.

23.  For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time is therefore refused and the applicant’s summons filed on 18 November 2022 is dismissed.

24.  This judgment is written in English as the Form 86, the applicant’s Summons herein, and the EOT Decision are all in English and the applicant does not appear to have difficulty in dealing with these documents. He therefore either is conversant in English or has access to assistance to understand English.