RE Phan The Cuong RE PHAN THE CUONG

CAMP 290/2022

[2022] HKCA 1454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 290 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 684 OF 2021)

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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):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 12 August 2021[1] refusing to extend the time for applying for judicial review and dismissing the application for 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 5 January 2021. In that decision, the Board accepted the applicant’s request to withdraw his appeal against the decision of the Director of Immigration (“Director”) dated 17 September 2020 rejecting the applicant’s non-refoulement claim.

2.  On 20 July 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a Vietnamese national, born in 1993. He entered Hong Kong illegally on 28 April 2020 and was arrested by the police on 19 May 2020. After he was referred to the Immigration Department, he raised a non-refoulement claim by written signification on 8 June 2020 on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor for failing to repay his loan. The detailed factual contents of his claim were set out in paragraphs 6.5 to 6.16 of the Director’s decision dated 17 September 2020.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 17 September 2020 the Director rejected the applicant’s claim.

5.  On 5 October 2020, the applicant lodged a notice of appeal/petition to the Board against the decision of the Director. Before the appeal was processed, however, by two letters dated 28 and 29 December 2020 respectively the applicant asked to withdraw his appeal/petition, stating that he wished to return to Vietnam. Specifically, in his letter of 28 December 2020, the applicant wrote: “So now in Vietnamese my problem already finish. So that I need to go back Vietnam with my family. I don’t want any request for Torture Claim from Immigration Department. I don’t want apply against Torture Claim Appeal Board. So I hope dear Sir/Madam help me, give me return to Vietnamese …” Accordingly, by letter dated 5 January 2021, the Board, having considered the matter, concluded that the application to withdraw was freely made and that there was good reason for the withdrawal. The Board therefore directed that the appeal/petition was withdrawn and that the Director’s decision was confirmed.

The Judge’s decisions in the court below

6.  Notwithstanding his own application for withdrawal of the appeal, on 13 May 2021 the applicant filed a Form 86 in the Court of First Instance to seek leave to apply for judicial review of the Board’s decision dated 5 January 2021. The application was made after the expiry of the 3-month period prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A). The applicant did not specify any ground for judicial review in the Form 86. In his affirmation he stated he did not agree with the Board’s decision and so he wanted to file a judicial review because he could not return to his country and his life would be in danger there.

7.  Based on consideration of the documents alone, on 12 August 2021 the Judge issued his decision, refusing to grant an extension of time or to grant leave to apply for judicial review. The reasons were set out at [13] – [21] of the Form CALL-1 as follows:

“ 13. In the Applicant’s case, a delay of more than 5 weeks must be regarded as substantial, for which he did not provide any explanation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his substantial delay.

14. As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 for or merits in his intended application.

15. 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.

16. In the Applicant’s case, the Board had acceded to his clear request to withdraw his appeal on the basis of his stated reasons, and had also confirmed the Director’s decision which has therefore finally determined the Applicant’s non-refouement claim once his appeal had been properly disposed of by the Board, and in his present leave application the Applicant has failed to identify in what way that the decision constituted any error of law, irrationality or procedural unfairness on the part of the Board.

17. Nor had the Applicant applied to the Board to seek to re-instate his appeal, which the Board would in any event only do so upon being satisfied that the appeal had been invalidly withdrawn and was thus a nullity, as held by Ap v Secretary of State for the Home Department the United Kingdom’s Asylum and Immigration Tribunal in [2008] INLR, as otherwise the Board would have been functus officio to deal with the appeal after accepting the withdrawal of the same, a decision followed by the Court of First Instance in HT v Betty Kwan [2017] 2 HKLRD 567 and approved by the Court of Appeal in Re Ali Usman [2018] HKCA 955.

18. In Re Das Purnima Rani [2019] HKCA 669, Lisa Wong J in giving the judgment of the Court of Appeal elaborated on these principles as follows:

‘ 41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeal.

… ’

43. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.’

19. In applying these principles, I do not read the Applicant’s Form 86 or his supporting affirmation in anywhere contesting the validity of his earlier withdrawal of his appeal to the Board against the Director’s decision. More importantly, it seems quite clear to me from his two earlier letters to the Board, the Applicant did make a deliberate and informed decision in December 2020 to withdraw his appeal, and that his subsequent change of mind by his present application in the absence of any good reason cannot in my view invalidate his earlier withdrawal of his appeal before the Board.

20. In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration of the Applicant’s request to withdraw his appeal.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

8.  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 15 December 2021 to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant stated that the order dated 12 August 2021 was in English and he did not understand English and did not know if there was a deadline for filing an appeal. He had to ask his friends to help him as a result of which he did not file his appeal in time. He said that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in this country.

9.  The Judge held an oral hearing of the summons on 6 July 2022. In his written decision dated 20 July 2022, the Judge dismissed the application as he considered that there was no prospect of success in the intended appeal.

The renewed application before this Court

10.  By summons filed on 5 August 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In his accompanying affirmation, the applicant again claimed that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in this country. At the same time the applicant also filed a signed statement, in which he asserted that the oral evidence he provided to the Board and the Department of Immigration was true but they did not investigate and reached conclusions based on their subjective opinions. He said that his life would be under threat in Vietnam though gathering evidence to prove this was “completely impossible”. He also asserted that the Immigration Department did not consider his human rights.

11.  The applicant did not lodge any written submissions despite the direction of the Registrar of Civil Appeals that he should do so by 19 August 2022. Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  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.

13.  The applicant’s application to the Judge for extension of time to appeal was made 3 months after the deadline for appeal (excluding the time in August 2021). This is a substantial delay for which there is no valid and proper excuse. Time should not be extended unless there is a real prospect of success in the appeal.

14.  In the present case, contrary to the applicant’s assertion in his statement, the Board did not hear any oral evidence from him. Instead he himself wrote to withdraw his appeal to the Board before it had been processed. Section 37ZTA of the Immigration Ordinance (Cap 115) provides:

“ (1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

15.  The Board, after due consideration, came to the conclusion that the request for withdrawal was valid and should be allowed. The applicant had put forward no ground for impugning this decision, which was after all what he himself had asked for, or to explain why the statutory provision in section 37ZTA should not take effect. Nor had he explained why he requested for withdrawal of the appeal but subsequently decided to pursue judicial review. There appears simply to have been a change of mind on the part of the applicant. This is of course not a valid basis for suggesting that there was any error in the Board’s decision.

16.  The applicant has also failed to show how the Judge has erred in refusing to extend the time to apply for judicial review and dismissing the application before leave to apply for judicial review. Having considered the materials before us, we share the Judge’s view that there is no ground for judicial review. The Judge was right to refuse leave.

17.  We likewise do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.