|
CAMP 318/2021
[2022] HKCA 344
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 318 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1682 OF 2019)
____________________
| RE: |
NGUYEN QUOC ANH |
Applicant |
____________________
| Before: |
Hon Barma and Au JJA in Court |
| Date of Judgment: |
4 March 2022 |
_______________
J U D G M E N T
_______________
Hon Au JA (giving the Judgment of the Court):
1. This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 26 August 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2087). An earlier application for extension of time to appeal was refused by the Deputy Judge on 8 July 2021 (“the EOT Decision”) ([2021] HKCFI 1853).
2. The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 31 May 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 June 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).
3. Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
Background
4. The applicant is a national of Vietnam. He entered Hong Kong illegally on 1 November 2015 and surrendered to the Immigration Department on the following day when he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor for failing to repay his loan.
5. By a Notice of Decision dated 22 June 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].
6. The applicant then appealed against the Director’s Decision to the Board. He attended an oral hearing before the Board on 23 April 2019 and gave evidence. The Board dismissed his appeal on 31 May 2019 and confirmed the Director’s Decision. The Board doubted the applicant’s credibility and did not consider him a reliable witness. The Board also considered that the dispute between the applicant and his creditor was a monetary private dispute. Having assessed the evidence, the Board considered that state protection and internal relocation would be available to him upon his return to Vietnam. Accordingly, the Board considered that the applicant failed to substantiate his case on the applicable grounds and dismissed his appeal.
The Leave Decision
7. On 19 June 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. In his Form 86 and supporting affirmation, he merely repeated his claim that he would be harmed by his creditor in his home country without putting forward any proper ground of review for his intended challenge. As he did not request for an oral hearing, the Deputy Judge considered his application on paper.
8. On 11 May 2020, the applicant wrote to the Court requesting to withdraw his application and his family had been able to help him repay his loan to his creditor and it would be safe for him to return to Vietnam. As the basis for his claim no longer existed, by the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review on paper.
The EOT Decision
9. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.
10. On 25 March 2021, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, he was over six months late for his intended appeal. In his supporting affirmation, the applicant contended that the Court of First Instance failed to arrange an oral hearing in which he would have been given a fair, just and reasonable opportunity to make oral submissions in which he wished to draw the Court’s attention that he would still face danger to his life in his country of origin.
11. The Deputy Judge heard the EOT Summons on 23 June 2021 (“the EOT Hearing”). A Vietnamese interpreter was present to provide language assistance. During the EOT Hearing, the applicant further contended that he did not read or write English and was unable to find anyone to explain the decision to him or to help him prepare the documents for his appeal. He claimed that he was only able to get assistance when he was detained at the Castle Peak Bay Immigration Centre and to instruct a lawyer to prepare the documents for his appeal.
12. By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal. The Deputy Judge considered a delay of over six months[5] as very substantial and excessive and was not satisfied that the applicant had provided any good reason for his serious delay. As the decision to dismiss the applicant’s leave application was made at the applicant’s request and upon his confirmation that his claimed problem in his home country which formed the basis of his non‑refoulement claim had been resolved; and further noting that the applicant did not request for any oral hearing for his leave application, his leave application was considered and dismissed on paper. The Deputy Judge also noted that if the applicant’s alleged problem in his home country had recurred or had not been resolved, the applicant may be able to resort to the provisions of the Immigration Ordinance, Cap 115. As his intended appeal has no merit and it would be futile to extend time, the EOT Summons was dismissed.
The Present Application
13. On 5 August 2021, the applicant filed a summons and supporting affirmation applying for leave to appeal against the EOT Decision. In his summons, the applicant also asked for leave to be granted for him to advance “a new sole ground of appeal” without giving any particulars or elaboration. In his supporting affirmation, the applicant claimed that the decision of the High Court had been reached unfairly without allowing him an opportunity to clarify his case and situation in his country. He further claimed that he would like to appeal out of time as he did not have the appropriate means and did not receive the decision on time.
14. The applicant failed to comply with the directions of the Registrar of Civil Appeals made on 5 August 2021 and did not lodge any written submissions in support of his present application.
Discussion
15. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].
16. We agree with the Deputy Judge that the applicant’s delay of over six months was substantial and the applicant had failed to provide any cogent explanation for his delay. As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].
17. The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].
18. In our view, the applicant’s contention that the decision made by the Deputy Judge was unfair without allowing him an opportunity to clarify his case and the situation in his country simply cannot stand. The Deputy Judge decided to consider his leave application on paper as the applicant did not request for any oral hearing; moreover, he had written to the Court to withdraw his application for leave to apply for judicial review on the basis that it was safe for him to return to Vietnam. Accordingly, it was appropriate for the Deputy Judge to consider and dismiss his application for leave to apply judicial review on paper. Even when he appeared before the Deputy Judge during the EOT Hearing, the applicant only made a general and bare allegation that if he returned to Vietnam, his life would be in danger, but failed to give any further elaboration or specific particulars in support. In the premises, his contention is without substance and must fail.
19. The applicant’s request for leave to advance “a new sole ground of appeal” must also be rejected, as he did not even specify what this “new sole ground of appeal” was. In any event, it is well established that this Court will not generally entertain new arguments which are fact‑and‑evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Daljit Singh [2018] HKCA 32 at [10]; Re Qadir Sher [2018] HKCA 160 at [11]; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].
20. For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 5 August 2021 dismissed.
| (Aarif Barma) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] At paragraph 2 of the EOT Decision, the Deputy Judge observed that the 14-day period for the applicant to file his appeal under Order 53, rule 3(4) of the RHC ended on 9 September 2020 and hence the applicant was late for over six months with his intended appeal. The Deputy Judge failed to take into account the Court’s Summer Vacation in the month of August (see section 29(2) of the High Court Ordinance, Cap 4 and Order 64, rule 1(1) of the RHC), which is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal by reason of section 31(1) of the High Court Ordinance. Accordingly, the deadline for the applicant to file the Notice of Appeal was 14 September 2020 instead.
|