RE DOAN DUY BA

CAMP 540/2021

[2022] HKCA 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 540 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1095 OF 2021)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 20 September 2021[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written statement and also lodged a written submission to support his application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Vietnam aged 38.  He entered Hong Kong illegally and was arrested by the police on 22 February 2020.  He later raised a non-refoulement claim based on his fear of being harmed or killed by his creditor and his followers due to his inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

5.  By his decision dated 14 October 2020, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  The Board heard the appeal at an oral hearing held on 14 January 2021.  By its decision dated 9 April 2021, the Board dismissed the appeal.  The Board considered that, on the applicant’s case, the harm inflicted on him did not meet the minimum level of severity, the risk of torture or ill-treatment on returning to Vietnam was very low and remote, and there is no evidence to show that his right to life would be arbitrarily deprived.  The Board also found his problem to be a private debt that had nothing to do with the Vietnamese government or authorities.  The Board held that the availability of internal relocation alternatives would further lower or negate the level of risk that the applicant may face, and concluded that the claim failed on all applicable grounds.

7.  Order 53 rule 4(1) of the Rules of the High Court provided that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  The three-months’ period for the applicant to apply for judicial review expired on 9 July 2021.

8.  On 4 August 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any specific ground for seeking relief.  He merely stated in his affirmation that it would not be safe for him to return to Vietnam.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 20 September 2021, he dismissed the application.  Principally, the Judge considered that the applicant failed to raise any valid ground to challenge the Board’s decision, and he also did not find any error of law, irrationality or procedural unfairness in the Board’s decision.  He concluded that the intended judicial review had no realistic prospect of success, and thus refused to extend the time for the applicant to apply for judicial review.

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The appeal period expired on 4 October 2021.  By a summons filed on 18 October 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 9 November 2021[6] refused the application. 

11.  On 30 November 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

12.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

13.  The applicant was two weeks late when he made the application for extension of time on 18 October 2021. He explained the delay on the ground that as he did not know either Chinese or English or how to appeal, he needed help from his friend to complete the documentation but his friend could only help him when he had time.  We accept that the applicant may not be familiar with the legal process and have some language difficulty.  Since two weeks is not a significant delay, we will focus on the merits of the intended appeal, which is the most important consideration

14.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  The summons and the supporting affirmation do not contain any specific ground in support of the intended appeal.  The written statement complained that the Director did not consider his human rights under the Basic Law and various local legislation and international covenants.  It also stated that his creditor and his followers had threatened to kill him, his life would be in serious threat on returning to Vietnam as the creditors and gangsters were cruel and violent with no regard for law and humanity.  It requested that the applicant’s repatriation be postponed because his mother, who borrowed the loan, had yet to agree on a repayment plan with the creditor.   

17.  The applicant’s written submission gave an outline of his claim and the procedural history.  Under the “Submission” section, apart from repeating the content of the written statement, it quoted extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[7] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness.  It complained that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing his credibility.   

18.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  The Board had not made adverse finding on the credibility of the applicant or the primary facts underlying his claim.  The applicant’s complaint that the Board did not fairly or properly assess his credibility is therefore misplaced.

(2)  In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written submission cannot amount to arguable ground of appeal. 

(3)  Regarding the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

(4)  As to the legal propositions set out in the written submission, it has not been explained or shown how they relate to the applicant’s case.

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the time for applying for judicial review should not be extended.       

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 November 2021. 

[1] [2021] HKCFI 2784

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[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] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2021] HKCFI 3185

[7] Misquoted as “ST v Director of Immigration” in the applicant’s written submission.