BUI THANH MINH v. TORTURE CLAIMS APPEAL BOARD

CAMP 151/2023, [2024] HKCA 1135

On appeal from [2022] HKCFI 2759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 151 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 599 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 8 September 2022, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 17 November 2022, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 16 February 2023[2].

3.  On 12 April 2023, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Vietnam. He alleged that he sneaked into Hong Kong from the Mainland on 3 April 2016. He was arrested by the police on 15 April 2016 and lodged a non-refoulement claim on 20 April 2016. His claim was made on the basis that he will be harmed or killed by his creditor if he returns to Vietnam.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. The appeal was heard before the Board on 20 February 2019. The Board found major inconsistencies between the applicant’s oral testimony and his written evidence in relation to the alleged loan for which the applicant failed to provide satisfactory explanation. The Board did not accept that the applicant had obtained any loan from his creditor or that he had been assaulted and threated by the creditor. The Board further held that a reasonable level of state protection is available for the applicant in Vietnam. The Board also considered it would be safe for the applicant to relocate to Ho Chi Minh City and Da Nang, even if the Board were to assume the core of the applicant’s factual narrative to be genuine. Therefore, the Board decided that the applicant is not at risk on any of the applicable grounds and dismissed the appeal on 25 February 2019.

The intended judicial review

7.  On 4 March 2019, the applicant filed a Form 86 and an affirmation in HCAL 599/2019 to seek leave to bring judicial review against the Board’s decision. He only reiterated the problems he may face in Vietnam in his affirmation without putting forward any grounds for his intended challenge.

The judge’s decision

8.  DHCJ Bruno Chan considered the leave application on paper as the applicant did not request for an oral hearing. The judge held that the Board had given detailed analysis and reasoning for making adverse finding on the applicant’s credibility and the applicant failed to identify any legal error, procedural unfairness or irrationality in the Board’s decision. The judge found no error or law, procedural unfairness or failure to apply high standards of fairness in the assessment and decisions of the Director and the Board. Therefore, the judge dismissed the leave application on 8 September 2022.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in his written statement and affirmation, which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;

(2)  It was unsatisfactory for the court to rule that the applicant has no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(5)  With the nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(6)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Legal principles

10.  In considering whether to extend time for appealing against a decision refusing 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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 8 September 2022 and the applicant was late by 8 weeks when he took out the summons at the court below on 17 November 2022. He explained that the time for appeal has already expired when he received the letter from the court.

12.  The court sent the decision to the applicant’s address by post on the date of handing down on 8 September 2022, which was later returned by the post office on 20 June 2023. It is noted that the applicant’s address in his summons for extension of time filed with the court below is different from the address he previously provided to the court. However, he has not filed any notice of change of address for service to inform the court of his change of address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Therefore, the applicant’s explanation cannot justify his delay.

13.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The judge was entitled to consider the applicant’s leave application on paper without a hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court, as the applicant did not request for an oral hearing in his Form 86. The applicant had the opportunity to make any clarification through his affirmation in support. Furthermore, a hearing was fixed for the applicant’s application for extension of time to appeal at the lower court but the applicant was absent at the hearing. Under these circumstances, there is no basis for the applicant to complain that he was not given the opportunity to clarify his case and there is nothing to show that the judge’s decision was made unfairly.

16.  The rest of his grounds are also not viable. They are not supported by sufficient particulars or evidence in support. The applicant failed to show that the judge was wrong in holding there is no error or law, procedural unfairness or failure to apply high standards of fairness in the assessment and decisions of the Director and the Board.

17.  For the above reasons, there is no prospect of success in the intended appeal. We refuse to grant extension of time to appeal against the decision of 8 September 2022 and dismiss the summons filed on 12 April 2023.