DUONG VAN CUONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 278/2023, [2024] HKCA 984

On appeal from [2023] HKCFI 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 278 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1264 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 24 May 2023, 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 16 June 2023, the applicant filed a summons at the Court of First Instance to seek leave to appeal against that decision out of time. The summons was dismissed by the judge on 3 August 2023[2].

3.  On 10 August 2023, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time.

4.  The applicant is a national of Vietnam. He alleged that he sneaked into Hong Kong from the Mainland on 26 December 2015. He surrendered to the Immigration Department and lodged a non-refoulement claim on 30 December 2015. His claim was made on the basis that he will be harmed or killed by his creditor and his associates if he returns to Vietnam.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 10 May 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 2 January 2019. The Board considered that the account of the applicant is complete invention and has no basis in truth as the applicant cannot even give the most basic details of the most material facts of the claim. The Board also found that the evidence in the non-refoulement claim form and the record of interview is full of exaggeration, fabrication, discrepancies, inconsistencies and bare assertions which fly in the face of common sense and logic. As the claimant did not get any disturbance from the creditor during his stay in his grandmother’s house, the Board held that the creditor was not as powerful and influential as alleged and that the creditor would not be able to find the applicant should he move away from home. The Board also found that the alleged problem is related to a private dispute and there is nothing to show that the alleged ill-treatment was coming from state agents. The Board further assessed that sufficient state protection and internal relocation alternatives are available to the applicant in Vietnam. Therefore, the Board decided that the applicant’s claim failed on all applicable grounds and dismissed the appeal on 3 May 2019.

The intended judicial review

7.  On 10 May 2019, the applicant filed a Form 86 and an affirmation in HCAL 1264/2019 to seek leave to bring judicial review against the Board’s decision. He only reiterated the problems he faced in Vietnam without putting forward any grounds for his intended challenge against the Board’s decision.

The judge’s decision

8.  DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing. The judge held there is no error of law or irrationality or procedural unfairness in the Board’s decision. As there is no prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 24 May 2023.

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 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)  As he is wanted by the Vietnamese police for disturbing public order, he is worried that he would be brutally tortured by the Vietnamese police if he is caught by them;

(7)  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.

Analysis and disposition

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 24 May 2023 and the applicant was late by 9 days when he took out the summons at the court below on 16 June 2023. The applicant did not provide any explanation for the delay.

12.  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.

13.  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.

14.  The applicant had not raised the issue about being wanted by the Vietnamese police for disturbing public order in the previous applications before the lower court. It is not open for him to raise this new ground for the first time at this late stage of the proceedings. In any event, this ground is not supported by any particulars and evidence.

15.  Besides, the judge was entitled to consider his 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. There is nothing to show that the judge’s decision was made unfairly.

16.  The rest of his grounds are not viable. They are not supported by evidence and the applicant failed to show that the judge was wrong in holding that there is no error of law or irrationality or procedural unfairness in the Board’s decision.

17.  For the above reasons, there is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 10 August 2023 for leave to appeal out of time.