DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 465/2022, [2023] HKCA 517

On appeal from [2021] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 465 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 892 OF 2021)

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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 28 July 2021, Deputy High Court Judge K W Lung 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 September 2021, the applicant filed a summons for extension of time in the Court of First Instance to appeal against that decision. His summons was dismissed by the judge on 12 October 2021[2].

3.  On 7 November 2022, the applicant filed a renewed application with the Court of Appeal.

4.  The applicant is a national of Vietnam of 40 years old. He first came to Hong Kong illegally on 23 December 2018. He was arrested by the police on 29 December 2018 and was repatriated to Vietnam on 4 February 2019. He came to Hong Kong illegally again and on 29 May 2020 was arrested for wounding, unlawful remaining in Hong Kong, possession of forged Hong Kong Identity Card and criminal intimidation. He was sentenced to 15 months’ imprisonment. He lodged a non-refoulement claim on 11 October 2020 on the basis that he will be ill-treated or killed by his creditor because he is incapable of repaying the loan.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 16 February 2021, 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. He attended the hearing before the Board on 25 May 2021. Although the Board accepted that the applicant had received verbal threats from his creditor and had been physically assaulted on some occasions, the Board found that the creditor did not really want to seriously harm or kill the applicant. The Board considered that the applicant’s injuries have not attained the requisite minimum severity and the risk is a localised one. The Board also found that the applicant’s problem arose from a private loan dispute. It was assessed that reasonable state protection will be available to the applicant in Vietnam and he should be able to relocate to other places in Vietnam to avoid the feared risk of harm. Therefore, the Board dismissed the appeal on 4 June 2021.

The intended judicial review

7.  On 21 June 2021, the applicant filed a Form 86 to seek leave to apply for judicial review concerning his non-refoulement claim. He stated in his affirmation that he does not agree with the Board’s decision because he will be in danger and cannot return now.

The judge’s decision

8.  As the applicant did not ask for a hearing, DHCJ K W Lung dealt with the application on paper. The judge directed that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director the interested party. Having examined the Board’s decision rigorously and with anxious scrutiny, the judge considered there is no error of law or procedural unfairness in the Board’s decision and hence the findings of the Board are not in any respect open to challenge. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 28 July 2021.

Grounds of intended appeal

9.  The applicant only stated in his supporting affirmation that he is unrepresented and did not have access to any legal advice, without putting forward any grounds of appeal against the judge’s decision. He also failed to lodge any written submissions.

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 28 July 2021. When he took out the summons for extension of time to appeal at the court below on 16 September 2021, the applicant was late by 5 days exclusive of the court’s summer vacation in August.

12.  The applicant’s application for extension of time to appeal was refused by the court below on 12 October 2021. He renewed the present application to the Court of Appeal on 7 November 2022 more than a year later. He did not provide any explanation for his substantial delay in making the renewed application to the Court of Appeal. As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits: 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 Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[7]. The applicant already had the benefit of legal representation in presenting his case to the Director. Thus, his ground concerning the lack of legal advice is unmeritorious.

15.  The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16.  For the above reasons, there is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 7 November 2022.