RE DONG VAN AN

CAMP 538/2021

[2022] HKCA 1888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 538 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1003 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 22 April 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 3 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 26 October 2017 rejecting the applicant’s non-refoulement claim.

2.  On 23 November 2021, the Judge refused to extend time for the applicant to appeal against the Judge’s decision of 22 April 2021.[2]

Background

3.  The applicant is a Vietnamese national born in 1982.  He surrendered himself to the Immigration Department on 4 August 2015 after apparently entering Hong Kong without permission two days earlier.  He lodged his non-refoulement claim on 22 September 2015.  His claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by his creditor for failure to repay his loan.  The factual background was set out at paragraphs 16 to 30 of the Board decision.

4.  By notice of decision dated 26 October 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

5.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 2 March 2018, during which the Board clarified certain matters with the applicant, and the applicant provided some further details to the Board.  The Board found that on the basis of the applicant’s evidence, the creditor was simply using threats and minor assaults (resulting in bruises)  to put pressure on the applicant to repay his loan, without any intention to hurt him seriously.  He had not suffered any serious injury or harm.

6.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation to other cities in Vietnam such as Ho Chi Minh, Da Nang or Mong Cai was viable.  Therefore, the Board dismissed the applicant’s appeal on 3 April 2018 on all applicable grounds.

The Judge’s decisions in the court below

7.  On 4 June 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant deposed that the risk of torture still existed since the creditor and his associates continued to go to the applicant’s parents’ house to look for him, and made threats to his parents that if he did not repay the loan, they would kill the applicant if he were to appear in Vietnam.  However, the applicant did not raise any specific grounds for judicial review.

8.  Following consideration of the documents only, on 22 April 2021 the Judge refused to grant leave to apply for judicial review, the reasons for which were set out at [11] – [14] of the Form CALL-1 as follows:

“ 11. 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.

12. 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 his 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.

13. 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.

14.  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.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 5 July 2021 to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, the applicant briefly related the factual basis for his claim, but did not provide any explanation for his delay in appealing or specify any grounds of appeal. 

10.  At the hearing of that summons before the Judge on 10 November 2021, the applicant explained that the appeal was late because he did not receive the court’s letter; he was required to appear at the Shatin Magistrates’ Court every 3 months in relation to a charge of a breach of a deportation order, and it was only when he appeared at the court in Shatin that he was told of the Judge’s refusal of leave to apply for judicial review.

11.  Subsequently, on 23 November 2021, the Judge handed down his decision in writing, refusing to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissing the summons.

The renewed application before this Court

12.  On 29 November 2021, the applicant filed a summons at this Court to seeking an extension of time to appeal against the decision of the Judge to refuse leave for judicial review.  In his supporting affirmation, the applicant explained that his appeal was late because he did not have money to seek legal advice, and could not approach the High Court’s Resource Centre for Unrepresented Litigants to find out how to appeal.  He stated that he believed there was a good ground of appeal that had not necessarily been considered at the stage of applying for leave for judicial review, but did not specify such ground. 

13.  The applicant lodged his submissions on 13 December 2021, in which he briefly referred to the factual background as well as the procedural history.  In the remainder of his submissions, he set out certain general legal principles and quoted passages from case authorities, and asserted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

14.  However, in those submissions the applicant did not provide any details or particulars in support of his arguments, or as to any specific errors made by the Judge.

Discussion

15.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

16.  In the absence of a reasonable explanation for the delay, the court will not extend time unless there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  According to the court’s records, the Judge’s decision to refuse leave for judicial review dated 22 April 2021 was sent by ordinary post to the applicant’s address for service on his Form 86, but was returned undelivered on 13 May 2021.  Clearly, the applicant did not receive that decision in time to file an appeal on time. However, the reason the court’s letter was returned undelivered was because the address provided by the applicant was incomplete and invalid.  The explanation for the delay therefore cannot be accepted as a reasonable or valid one.  It is necessary for the applicant to show that the intended appeal has a real prospect of success.

19.  As mentioned above, in his submissions the applicant did not provide any particulars in support of his arguments or as to any specific errors in the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

20.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

21.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding that on the basis of his own evidence, he had not suffered any serious injury or harm.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  The applicant has failed to point to any such ground in this case; nor can we see any from the materials available.

22.  As for the applicant’s argument that the Board failed to properly assess his credibility, this is clearly misconceived and irrelevant, as the Board decision was not based on any issues of credibility.

23.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

24.  For the reasons above, we do not see any prospect of success in the intended appeal.  It would be futile to extend time for a hopeless appeal.  The summons for extension of time to appeal is dismissed accordingly.