TRAN VAN HUYEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CAMP 165/2022, [2024] HKCA 223

On Appeal From [2021] HKCFI 1655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 165 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1551 OF 2018)

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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 the two applicants’ joint application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 8 June 2021[1] refusing to grant extension of time to apply for judicial review and refusing to grant leave for the applicants to apply for judicial review.  The intended judicial review is against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 1 December 2016 and 20 October 2017.  In those decisions, the Board dismissed the applicants’ appeals against the decisions of the Director of Immigration (“Director”) dated 28 January 2015 and 7 April 2017 respectively rejecting their non-refoulement claims.

2.  On 22 December 2021, the Judge refused to extend time for the applicant to appeal against his decision of 8 June 2021.

Background

3.  The 1^st and 2^nd applicants are nationals of Vietnam born in 1986 and 1993 respectively.

4.  The 1^st applicant had a history of illegal entries into Hong Kong from Mainland China, which he was permitted to enter from Vietnam.  In December 2005, he illegally entered Hong Kong from Mainland China; he was subsequently arrested by the police and subjected to a removal order to Vietnam on 3 May 2006.  In February 2011, he illegally entered Hong Kong from Mainland China; he was subsequently arrested by the police and subjected to a removal order to Vietnam on 8 April 2011.  The 1^st applicant entered Mainland China from Vietnam on 15 November 2013 again and last entered Hong Kong illegally, according to him, on 17 November 2013.  He surrendered to the Immigration Department on 20 November 2013.

5.  The 2^nd applicant and the applicants’ son, born in 2013, last entered Hong Kong as visitors and were permitted to stay until 17 November 2013.  They overstayed and surrendered to the Immigration Department on 19 November 2013.

6.  On 12 March 2014, the 1^st and 2^nd applicants, together with their son, lodged their non-refoulement claims on the basis that they would be harmed or killed by gangsters due to refusal to pay extortion money, if they were refouled to Vietnam.  According to the papers, although the son of the 1^st and 2^nd applicants was a party up to the stage of the Board’s decisions, he does not appear to have been a party to the application to the Court of First Instance for leave to apply for judicial review or subsequent proceedings.

7.  The applicants’ claims were first assessed by the Director with reference to BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]  By a notice of decision dated 28 January 2015, the Director rejected their claims.

8.  The applicants appealed to the Board against the Director’s decision dated 28 January 2015.  The Board held an oral hearing of the appeal on 27 August 2015, at which the 1^st applicant gave evidence and answered questions from the Board and the 2^nd applicant supplemented the 1^st applicant’s testimony from time to time.  In its decision dated 1 December 2016, the Board dismissed the appeals and affirmed the decision of the Director dated 28 January 2015.  It found the applicants to be dishonest, to have given unreliable stories and not to be genuine claimants.  In particular, having regard to section 37ZD of the Immigration Ordinance, Cap. 115, the Board found the applicants to lack credibility, because the 1^st applicant did not raise a torture claim after his last two illegal entries into Hong Kong.  He should have known illegal entry was unlawful and dishonest as he had entered Hong Kong illegally three times already, and they withheld facts of their claim provided to the United Nations High Commissioner for Refugees by not giving consent for the Director to access that information.  Furthermore, in light of the COI, the Board did not accept that the applicants’ creditor and associates would still be interested in or even expend huge resources and manpower in locating the applicants all over Vietnam in order to harm or kill them so many years later.  It found that safe internal relocation without undue hardship would be viable.  Therefore, the Board concluded that the applicants were not honest in making their claims, and in any event the alleged misfortunes, even if they existed, did not amount to any substantial risks of harm.

9.  On 13 January 2017, the Director invited the applicants to submit any further materials for consideration in relation to BOR 2 risk.[5] The applicants’ claims were assessed by the Director with reference to BOR 2 risk on the basis of the available materials and the applicants’ letter dated 23 March 2017.  By a notice of decision dated 7 April 2017, the Director rejected their claims.

10.  The applicants appealed to the Board against the Director’s decision dated 7 April 2017.  No oral hearing was held as the Board opined that the applicants had raised nothing factually or legally new to what had been stated previously.  In its decision dated 20 October 2017, the Board dismissed the appeal and affirmed the decision of the Director dated 7 April 2017.  In its reasoning, the Board stated that it adopted all the reasons stated in its decision dated 1 December 2016 as also applicable to BOR 2 risk and found that the applicants had not established a case under BOR 2 risk.

The Judge’s decisions in the court below

11.  Almost 1.5 years and more than 6 months respectively after the expiry of the 3 months’ time limit, on 6 August 2018, the 1^st and 2^nd applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decisions dated 1 December 2016 and 20 October 2017.  No grounds were specified in that form.  In the joint supporting affirmation, the applicants stated that if refouled to Vietnam, they would face genuine and substantial risk of being subjected to torture or even killed by their “creditor and his underlings” due to their inability to “repay the debt”.  They further annexed the Board’s two decisions dated 1 December 2016 and 20 October 2017.

12.  The Judge considered the application on the basis of the documents alone as the applicants did not request an oral hearing.  On 8 June 2021, the Judge issued his decision to refuse to grant extension of time for leave to apply for judicial review of the Board’s decisions dated 1 December 2016 and 20 October 2017 and to refuse to grant leave to apply for judicial review.  The reasons were set out in [12] to [18] of the Form CALL-1 as follows:

“ 12. As the last day of the three-month period for them to file their Form 86 as regard the later second decision of the Board fell on 20 January 2018, and hence the Applicants were 6 ½ months late with their application, not to mention that with the earlier first decision of the Board that their delay would be even more serious by almost 1 ½ year late, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicants’ case, a delay of 6 ½ months regarding the second decision, and never mind the much more serious one with the earlier first decision, must be considered as very substantial, for which the Applicants have never provided any explanation for either case, and as the record shows that the decisions were sent to their last reported address without being returned through undelivered post, I do not see any good or valid explanation for their serious delays.

14. As for the merits, if any, of their intended application, as noted above the Applicants have not put forward any proper grounds for their intended challenge, and in the absence of any error of law or irrationality of procedural unfairness in their process before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

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 Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other parts of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.

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

13.  Two weeks after the expiry of the 14 days time limit, the applicants filed a summons on 7 July 2021 together with a joint supporting affirmation.  The summons stated the applicants wished to judicially review the Board’s decisions dated 1 December 2016 and 20 October 2017.  This did not make sense as the Judge had just refused them leave to apply for judicial review.  In their joint affirmation, the applicants stated that if refouled, they would face a genuine and substantial risk of being tortured or killed by their creditors and their underlings due to their inability to repay the debt.  The summons was in due course treated by the Judge as the 1^st and 2^nd applicants’ application for an extension of time to appeal against his decision dated 8 June 2021.  An oral hearing was held on 8 December 2021 but the applicants were absent.  On 22 December 2021, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicants had failed to show any realistic prospect of success in their intended appeals.

The renewed application before this Court

14.  By summons filed on 25 May 2022, the 1^st and 2^nd applicants made an application for leave to “appeal the order dated 22 December 2021 out of time” and “leave to advance a new sole ground of appeal”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 8 June 2021 refusing leave for judicial review. 

15.  In the applicants’ joint supporting affirmation, they stated that the Judge’s decision was reached unfairly without allowing them to clarify their case and the situation in their home country, which they believe to be a sufficient reason to justify the court to exercise its discretion to allow the appeal out of time.  In their joint “statement” filed together with their joint affirmation, they recited the procedural history of their appeals, their complaints about the decisions of the Judge and the Director, the basis of their non-refoulement claims and their complaint that the Director did not consider their human rights under the relevant laws.  Also, the applicants stated that they did not understand English and required some friends to translate and help them file documents for their intended appeal.

16.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 25 May 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

17.  The applicants were late for two weeks when they filed their summons on 7 July 2021.  In their joint supporting affirmation, they repeated their claim for non-refoulement.  As this is not a very lengthy delay, we are prepared to focus on the merits of their intended appeals.

18.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

19.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeals.    The Board had heard the 1^st and 2^nd applicants in their first appeal and assessed their evidence, providing reasons in its decision dated 1 December 2016 for not accepting their assertions.  It found that the applicants lacked credibility due to the delay in making their non-refoulment claims, the 1^st applicant’s previous illegal entries into Hong Kong and their conduct of withholding information from the Director.  Further, the Board did not accept the applicants’ claims that, inter alia, their creditor would be interested or would use extensive resources in locating the applicants all over Vietnam many years after the incidents.  Even if a risk of harm existed for the applicants, the Board found that internal relocation was viable and safe without undue hardship.  Hence, the Board found that the applicants failed to establish any risk of harm.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

20.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicants have failed to establish or even identify any such public law grounds.

21.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicants stated that the Judge’s decision dated 22 December 2021 had been reached unfairly as they were not granted an opportunity to clarify their case and the situation in their country.  There is no basis for their complaint of unfairness, because an oral hearing was held on 8 December 2021 in relation to the Judge’s decision of 7 September 2021, but the applicants were absent.  In addition, the applicants’ bare complaint of unfairness lacked particulars specifying what matters the Judge was mistaken about which the applicants could have clarified.  The applicants have failed to advance any grounds to show how the Judge is said to have erred in dismissing their application for leave to apply for judicial review. 

22.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time for appeal should be refused.  The applicants’ summons dated 25 May 2022 is accordingly dismissed.