RE NGO QUANG THI

CAMP 195/2021

[2021] HKCA 1809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 536 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 27 May 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 21 May 2021 refusing the applicant’s application for an extension of time to appeal ([2021] HKCFI 1389)  (“the EOT Decision”)  against the Deputy Judge’s previous order dated 12 August 2020 refusing to grant leave to the applicant to apply for judicial review ([2020] HKCFI 1917)  (“the Leave Decision”).

2.  The applicant’s intended judicial review was directed at the decision dated 27 December 2018 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office’s (“the Board”)  decision, dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 November 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 on 29 June 2014.  He surrendered to the Immigration Department on 19 August 2014 and lodged a non-refoulement claim on the basis that if refouled, 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] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 27 November 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], prosecution risk[4].  After considering the evidence, the Director assessed the applicant’s level of risk of harm from his creditor upon his return to Vietnam as low and that state protection and reasonable internal relocation alternatives would be available to the applicant in Vietnam.

6.  On 6 December 2017, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing on 6 November 2018 and gave evidence.  On 27 December 2018, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.  The Board found significant inconsistencies and contradictions in the applicant’s evidence and concluded that his claim failed on all applicable grounds.

The Leave Decision

7.  Prior to the Board’s Decision, on 3 April 2018, the applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was stated in his Form 86.  In his supporting affirmation, he only asserted that he would be killed if he went back to Vietnam.  Although the Deputy Judge’s Clerk wrote to the applicant on 24 April 2020 requesting the applicant to submit his grounds for his intended application, the applicant failed to put forward any ground to challenge the Board’s Decision.

8.  On 12 August 2020, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review for the following reasons:

“12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 45 - 57 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law 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 to challenge the finding of the Board.

13. Furthermore, the fact is that it has been established by 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.

14. 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.

15. 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 after the order.  No notice of appeal was filed by the applicant within the 14-day period.  On 1 December 2020, the applicant filed a summons for extension of time to appeal (“the EOT Summons”).  By then, the applicant was more than two months late.

10.  By the EOT Decision, the Deputy Judge considered the applicant’s delay as very substantial.[5]  The applicant explained at the hearing of the EOT Summons on 11 May 2021 that he did not receive the Leave Decision in the mail and it was later when he reported for recognizance that he was informed of the Leave Decision but he was already out of time.  The Deputy Judge noted that the Leave Decision was sent on the same day to his last reported address which was the same as the EOT Summons and was not returned through undelivered post.  Accordingly, the Deputy Judge was not satisfied that the applicant had provided any good reason for his substantial delay.  Given that the applicant also did not put forward any proper or valid proposed grounds of appeal or any error in the Leave Decision, there was no prospect of success in his intended appeal and the Deputy Judge dismissed the EOT Summons on 21 May 2021.

The Present Application

11.  In his present summons dated 27 May 2021, the applicant did not provide any viable grounds of appeal.  In his supporting affirmation of the same date, he only reiterated the facts of his non-refoulement claim and his fear if refouled.

12.  The applicant failed to comply with the directions given by the Registrar of Civil Appeals on 29 June 2021 and did not lodge any written submissions.

Discussion

13.  Following the approach this Court has adopted 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.

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 delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if an extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider the delay of over two months to be substantial and the applicant has not provided any cogent explanation for the delay.  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].

16.  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].

17.  Nowhere in the summons or supporting affirmation of this application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  As such, no viable grounds of appeal are given by the applicant.  General and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  The intended appeal must fail on this basis alone.

18.  As the applicant failed to identify any proper grounds 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 applicant’s summons dated 27 May 2021 dismissed.