LE VAN QUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 490/2022, [2023] HKCA 512

On an Intended Appeal From [2022] HKCFI 1595 &

[2022] HKCFI 2810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 490 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 140 OF 2022)

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J U D G M E N T

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

1.  On 23 November 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 22 September 2022 refusing to grant an extension of time for the Applicant to appeal against the Judge’s earlier order dated 17 June 2022 refusing to grant leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 January 2017, and (ii) the decision of the Director dated 24 January 2022.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam. On 13 October 2014, the Applicant entered Hong Kong illegally. He surrendered himself to the authorities on 20 October 2014 and raised a non-refoulement claim on the same day on the basis that if he returned to Vietnam, he would be harmed or killed by a loan shark for his failure to repay a loan that he had borrowed for his restaurant business. Details of the Applicant’s claim have been summarised by the Judge at §§1-12 of the CALL-1 Form ([2022] HKCFI 1595).

5.  By a Notice of Decision dated 5 January 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s 2017 Decision”).

6.  The Applicant appealed the Director’s 2017 Decision to the Board. On 25 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s 2017 Decision (“the Board’s 2018 Decision”). The Board’s reasons for its decision were summarised by the Judge at §§14-18 of the CALL-1 Form, as follows:

“[14] The Board found multiple inconsistencies in material aspects of the Applicant’s evidence. It considered the Applicant incredible and his evidence unreliable. It rejected his account and dismissed his appeal. Basically, the Board found the Applicant had failed to discharge the burden of proving the factual basis in support of his claim to non-refoulement protection on all four applicable grounds under the USM.

[15] The Board then went further and held, on the basis of the account as asserted by the Applicant, that Tuan had no intention to harm or kill him as reflected by the fact that Tuan never harmed the Applicant during the two incidents and had not harassed his family for five years and four months between the second incident and the hearing of the appeal. The Board inferred from these facts that Tuan had no means to locate his family and hence assessed the risk of harm facing the Applicant and his family to be low.

[16] On the basis of credible Country of Origin Information (‘COI’), the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from Tuan. It was satisfied that the Vietnamese government had taken steps to combat corruption and illegal money-lending; and that there are channels for Vietnamese citizens to complain about police misconduct. It found that it was the Applicant’s personal decision not to make a report to the police and there was nothing to suggest that the Vietnamese police would have refused to pursue his complaint if he had made a report.

[17] Furthermore, the Board noted that being an able-bodied adult with 9 years of work experience, the Applicant may safely relocate to Ho Chi Minh city and it would not be unduly harsh to expect him to do so.

[18] Applying the law applicable to non-refoulement protection under the four applicable grounds under the USM to the case as asserted by the Applicant and its finding on the availability of state protection and internal relocation, the Board concluded that the Applicant is not entitled to protection under any of the applicable grounds under the USM. Accordingly, the Board dismissed his appeal against the 2017 Notice.”

7.  The Applicant was repatriated back to Vietnam on 9 November 2018. However, the Applicant again entered Hong Kong illegally in November 2019, and was arrested on 14 December 2021.

8.  On 23 December 2021, the Applicant requested to make a subsequent claim for non-refoulement protection. On 24 January 2022, the Director issued a decision (“the Director’s 2022 Decision”) refusing the Applicant’s request to make a subsequent claim under section 37ZO(5) of the Immigration Ordinance (Cap. 115). A decision made under this section is not appealable to the Board.

9.  On 15 February 2022, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s 2018 Decision and the Director’s 2022 Decision. No ground of judicial review was given in the Form 86. In his supporting affirmation, he merely stated that he disagreed with the decision of the Board and said that he could not return to his home because his life would be in danger over there.

THE JUDGE’S DECISION

10.  On 17 June 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[24] Apparently, his ground for seeking judicial review of the 2018 Decision of the Board is that he disagrees with the Decision and it is unsafe for him to return to Vietnam. He advanced no ground in support of his application for leave in respect of the Director’s 2022 Notice. In the absence specific grounds or grounds with sufficient particulars, the Court would only focus on possible criticisms of the 2018 Decision and the 2022 Notice on the basis of error of law, unreasonableness and irrationality.

Leave for the 2018 Decision

[25] The 2018 Decision was issued on 25 October 2018. The Applicant was repatriated to Vietnam on 9 November 2018. He made no application for leave to apply for judicial review of the decision until 15 February 2022, more than three years and three months later. By then, he was three years out of time for seeking leave to apply for judicial review under Order 53, rule 4(1) of the Rules of the High Court. The delay is very substantial…

[26] Furthermore, the Applicant has advanced no arguable grounds for judicial review. The sole ground he advanced was he disagrees with the 2018 Decision and it is unsafe for him to return. However, according to his Statement, he lived without trouble or problem in Vietnam for more than a year before he fled Vietnam. He never complained about harassment by Tuan. But for his new gambling debt and loan, he would not have been threatened by Nguyen and fled to Hong Kong again. He made no complaint that he was at risk because of the threat and harm from Tuan which were the subject matters considered in the 2018 Decision. He advanced no argument or evidence as to what is wrong with the 2018 Decision or its making that calls for judicial review. Insofar as the 2018 Decision is concerned, the alleged new threat is not relevant because the time for assessing an applicant’s entitlement to protection is at the time of the making of the decision. At that time, there was no such threat. He raised no perceivable ground for review in respect of the 2018 Decision. His intended judicial review of the 2018 Decision has no prospect of success.

[27] For the above reasons, leave to apply for judicial review of the 2018 Decision is refused. If he wishes to seek non-refoulement protection by relying on the new threat, his only option is to make a subsequent claim pursuant to section 37ZO(2) of the Immigration Ordinance. That is the subject matter of the 2022 Notice.

Leave for the 2022 Notice

[28] Unlike the case of the decision of an immigration officer made under section 37ZE(4), 37ZG(5), 37ZI(1)(b) or 37ZL(1) of the Immigration Ordinance for which there are prescribed procedures of appeal to the Board, the decision of an immigration officer made under section 37ZO(5) is not appealable to the Board. An aggrieved claimant may seek judicial review of such a decision on the grounds of error of law, procedural unfairness and irrationality. The Applicant advanced no grounds for judicial review. Accordingly, this Court would focus on these usual challenges in an application for judicial review.

…

[36] In summary, the immigration officer did not find the Applicant’s claim of fear and risk credible and hence there was no change in circumstance; but even if there were, he found it did not constitute a significant change of circumstance which when taken together with the materials previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. All these are finding of fact which is open to the immigration officer to make on the state of the evidence.

[37] This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

[38] Having rigorously examined the 2022 Notice, the Request, the Statement and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration observed a very high standard of fairness. He advised the Applicant on the law and procedure and the availability of the Duty Lawyer Service in prosecuting his Request. His communication was fully translated into Vietnamese for the Applicant’s convenience. He found the Applicant not credible and did not accept his account of the threat from Nguyen. He found there was no change in circumstance to entitle the Applicant to make a subsequent claim. Nevertheless, he proceeded to assess the Applicant’s claim on the basis of his case as asserted by him. It was on that basis that he found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.

[39] These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Despite the blemish in his second finding, the immigration officer could not be criticised for the conclusion he reached. The Court could detect no error of law in the decision. The decision in the 2022 Notice did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The decision in the 2022 Notice was utterly without fault. The proposed judicial review has no realistic prospect of success. His application for leave to apply for judicial review is refused.”

11.  On 22 September 2022, the Judge refused the Applicant’s application by summons dated 27 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2810).

THIS APPLICATION

12.  By a summons taken out on 23 November 2022, the Applicant applied to the Court of Appeal for leave to appeal out of time against the order of the Judge dated 22 September 2022.

13.  In his supporting affirmation filed on 23 November 2022, the Applicant stated the following:

“1. The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.

2. I believe that merits of this ground of appeal constitutes sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”

14.  The Applicant also lodged a 3-page “Statement” dated 23 November 2022. In summary, the Applicant complained that his life would be in danger if he was refouled back to Vietnam, and that he would not be able to relocate within Vietnam because his health was not good and there was no guarantee he would be able to adapt to a new place and find a job.

15.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 23 November 2022.

DISCUSSION

16.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

17.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

18.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

19.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

20.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

21.  The Applicant’s complaint that the decision of the High Court was reached unfairly because he never got any opportunity to clarify his case and situation in his home country has no merit. He did not request for an oral hearing in the Form 86. In view of the fact that no proper ground of judicial review was advanced in either the Form 86 or his supporting affirmation, the Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, r 3(3) of the Rules of the High Court.

22.  The Applicant has failed to raise any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 23 November 2022 is dismissed.