RE NGUYEN VAN DAT

CAMP 295/2021

[2022] HKCA 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 295 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1147 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 11 August 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant an extension of time for the applicant’s application for leave to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 28 October 2020 for extension of time to appeal.  That summons was dismissed by the Judge on 25 March 2021.

3.  On 28 July 2021, the applicant filed his summons in CAMP 295/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions of Registrar of Civil Appeals of 28 July 2021, the applicant should lodge his written submissions on or before 11 August 2021.  However, he failed to do so.

5.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

6.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

7.  The applicant is a national of Vietnam. He entered Hong Kong illegally on or about 22 September 2015 and subsequently surrendered to the Immigration Department and raised a non-refoulement claim by way of written representation on 30 November 2015 and 4 January 2016 alleging that if refouled, he would be harmed or killed by his creditors for failing to repay money he had borrowed for his sand mining business.  The factual background of this case was succinctly summarised by the Judge at [2] – [3] of the JR Decision ([2020] HKCFI 1893).

8.  By a Notice of Decision dated 28 April 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 12 December 2017.  By its decision dated 19 January 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [74] to [80], the Board found that the core of the applicant’s account lacked credibility on material issues such as whether there was security for his loans, who had threatened him, and how he encountered the creditors in Ho Chi Minh City.  Regarding his complaint of inaction by and corruption of police concerning his report on the damage of his mine by youngsters and threats from his creditors, the Board referred to the relevant Country of origin information (“COI”)  ([56] – [63])  which suggested that the Vietnamese Government has made great efforts to deter bribery and corruption such as the implementation of the 2013 anticorruption law and the setting up of the Anti-Corruption Bureau in 2015, and various government reports which showed that officials who received bribes for protection of illegal activities were punished.  In any event, the Board did not find the applicant’s claim was related to any Convention ground and found that internal relocation is a viable option to avoid the claimed risk.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 20 June 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  Pursuant to Order 53, rule 4(1)  of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose.

11.  In his supporting affirmation, he merely repeated his claim that his life would be in danger if he returned to Vietnam, as the COI relied on failed to truly reflect the reality of corruption in Vietnam.

The JR Decision

12.  The applicant failed to attend the oral hearing fixed for 27 May 2020 and thus the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time and dismissed the leave application for reasons set out in [10] - [16] of the JR Decision:

“10.  As the last day of the three-month period for him to file his Form 86 fell on 19 April 2018, the Applicant was therefore 2 months late with his application, 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.

11.  In the Applicant’s case, a delay of 2 months must be considered as excessive or substantial, for which he did not provide any explanation in his supporting affirmation, nor did he appear at the hearing of his application, and as the record shows that the Board’s decision was sent on the same day to his last reported address which was the same as stated in his Form 86 and without being returned through undelivered mail, I do not see any reason for his delay.

12.  As for the merit, if any, of his intended application, as noted above he has not put forward any proper or valid ground for his intended challenge other than some broad and vague assertions without any particulars or elaborations or proper basis in support of such assertions.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 80 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

15.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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 Applicant’s claim.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 28 October 2020 for extension of time to appeal. That was dismissed by the Judge on 25 March 2021.  Hence, the Summons to this court which was not filed until some 4 months after the Judge’s refusal to extend time.

Discussion

14.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

15.  As for (1), the applicant was late by more than 2 months between the deadline to file an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

16.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that the delay was caused by the fact that he was unrepresented and could not read English or Chinese, and he needed to seek assistance to understand the JR Decision and to prepare the documents for his appeal.  The Judge accepted that the applicant being unrepresented might need help with his intended appeal, however, the court record showed that the JR Decision was sent on the same day to his last reported address which was the same as that stated in his summons.  In the absence of any corroborating evidence to support his account of the events, the Judge was not satisfied that he has provided any good reason for his substantial delay.  In the supporting affirmation filed in this Court, the applicant repeated that his delay was caused by the language barrier.  As with the Judge, we do not find the reasons for delay acceptable.

17.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision.  He merely complained in his supporting affirmation that the Judge failed to take into account his low education level and the language barrier that caused his delay in filing his appeal.

18.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility as his evidence was inconsistent in many significant aspects of his claim.  In any event, his claim is private in nature and did not involve any state element.  Further, internal relocation is a viable option to avoid the risk, if any.  It was open to the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  The Judge was right to find there were none in this case.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 28 July 2021.