DOAN VAN KHOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 485/2022, [2023] HKCA 511

On An Intended Appeal From [2022] HKCFI 1938 &

[2022] HKCFI 2783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 485 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1101 OF 2019)

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J U D G M E N T

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

1.  On 21 November 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 23 September 2022 refusing to grant an extension of time for the Applicant to appeal against the Judge’s earlier order dated 27 June 2022 refusing to grant leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 May 2018.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam. He entered Hong Kong illegally on 28 June 2015. On 27 July 2015, he surrendered himself to the Immigration Department for remaining in Hong Kong after his illegal entry. On 29 September 2015, he claimed for non-refoulement protection on the basis that if he was refouled, he would be subjected to harm, or even killed, by Vietnamese public security officials for having published articles critical of the Vietnamese government in his capacity as a newspaper writer. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1938).

5.  By a Notice of Decision dated 9 May 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 12 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“上訴委員會考慮了原居國資料。它接納越南警隊低層存在貪污和低效能的情況，但這不代表申請人得不到國家保護。由資料可看出，越南政府已實施措施去改善對人民的保護及監察警方的操守，並取得了一定的正面成效 (見第31段)。在考慮相關資訊後，上訴委員會認為越南政府可以給申請人提供足夠保護 (見第28段至第40段)。同時，在審查申請人聲請的可信性時，上訴委員會發現其證據中有實質性的不一致。比如，申請人在第一份書面陳述中，稱他的聲請基礎是因為欠債；申請人對他所任職過的報章和他撰寫的文章無法提供可信的細節；申請人對報章的運作完全不瞭解，且沒有證據顯示他曾經在該報章就職；他亦未能提供越南公安傳喚他的證據和醫療證明；他所聲稱的傷害並未達至酷刑的標準；同時亦沒有證據顯示他所述的三名傷害他的公安是以官方身份行事。在此基礎上，上訴委員會駁回他對酷刑風險的上訴 (見第41段至第68段)。”

7.  On 24 April 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In his supporting affirmation, he merely stated the factual basis of his non-refoulement claim.

THE JUDGE’S DECISION

8.  On 27 June 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[12] 本席職責主要監督上訴委員會在作出裁決的過程之中有否遵守有關法律規定，公平公正地作出決定。至於證據和事實的評估和決定權是屬於處長和上訴委員的職責範圍，本席不應該無故干涉。有關法律規定可見於上訴法庭案例TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526§40 和 Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

[13] 本席明白，對於上訴委員會的決定，本席應該採取最嚴謹和苛刻的審查。

[14] 根據上訴法庭在Re: Kartini [2019] HKCA 1022的案件中指出，有關證據的評估，包括：原居國資料、傷害風險、國家保護、國内遷徙的事實，都是處長和上訴委員的權力範圍，法庭不應該在司法覆核的程序中加以干涉，除非該決定是出於法律誤判、程序不公或是有違常理的情形之下而作出。…

[15] 申請人未能提出合理理由反對上訴委員對事實的判決。根據上訴委員會對事實的評估，委員會不接受申請人在事實提出的證據。委員會也列出了其中理由。

[16] 本席認為上訴委員的決定沒有法律誤判、程序不公或是有違常理。

[17] 因此，本席認為沒有任何證據顯示，申請人建議對上訴委員會的決定作出司法覆核，有任何合理的成功機會。”

9.  On 23 September 2022, the Judge refused the Applicant’s application by summons dated 12 August 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2783).

THIS APPLICATION

10.  By a summons taken out on 21 November 2022, the Applicant applied for leave to appeal out of time against the order of the Judge dated 23 September 2022.

11.  In his supporting affirmation filed on 21 November 2022, the Applicant stated the following:

“1. The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.

2. I believe that merits of this ground of appeal constitutes sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”

12.  The Applicant also lodged a 3-page “Statement” dated 21 November 2022. In summary, the Applicant stated that his life would still be in danger if he was refouled back to Vietnam, and all his oral evidence provided to the Board and Director was true but was not accepted.

13.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 21 November 2022.

DISCUSSION

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

18.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.  The Applicant’s complaint that the decision of the High Court was reached unfairly because he never got any opportunity to clarify his case and situation in his home country has no merit. He did not request for an oral hearing in the Form 86. In view of the fact that no proper ground of judicial review was advanced in either the Form 86 or his supporting affirmation, the Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, r 3(3) of the Rules of the High Court.

20.  The Applicant has failed to raise any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 21 November 2022 is dismissed.

22.  This judgment is written in English because the Applicant’s Summons, Affirmation and Statement dated 21 November 2022 are all written in English. If required, the Applicant may make an appointment with the clerk to this Court for this judgment to orally interpreted to him in his language of choice in the Court’s premises.