LE CONG MANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 301/2023, [2024] HKCA 992

On appeal from [2023] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 301 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 208 OF 2023)

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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 5 May 2023, Deputy High Court Judge To 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 27 June 2023, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by Deputy High Court Judge K W Lung on 25 August 2023[2].

3.  On 4 September 2023, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time.

4.  The applicant is a national of Vietnam. He alleged that he sneaked into Hong Kong from the Mainland on 5 June 2020. He was arrested by the police on 9 July 2020 and lodged a non-refoulement claim on 20 July 2020. His claim was made on the basis that he will be harmed or killed by his creditor and associates if he returns to Vietnam.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 20 January 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. The appeal was heard before the Board on 10 June 2021. The Board considered there is no real risk of harm under the applicable grounds in the applicant’s case. It was found that the applicant and his family members had not suffered any death, harm, or threats of death or harm from the creditor and his associates in Vietnam. There is also no evidence of involvement of state actors. The Board further assessed that state protection and internal relocation alternatives are available to the applicant in Vietnam. Therefore, the Board decided that the applicant’s claim failed on all applicable grounds and dismissed the appeal on 25 April 2022.

The intended judicial review

7.  On 13 February 2023, the applicant filed a Form 86 and an affirmation in HCAL 208/2023 to seek leave to bring judicial review against the Board’s decision. The application was filed out of time. His grounds for his intended challenge may be summarised as follows:

(1)  The decision was unreasonable and unfair. The Board failed to give him sufficient time and opportunity to arrange for relevant evidence;

(2)  The Director failed to give proper weight to state acquiescence. The applicant was tortured at the behest of state law enforcement agencies as well as those in the “high up” of political circles;

(3)  The Director failed to take the above arguments into account and failed to consider the evidence which shows that the police in Vietnam would not be able to protect the applicant;

(4)  This was a clear case of unfair attitude shown by the Director. The corruption and incompetency of the administration in the applicant’s country is still a very serious problem. The Director failed to attain the high standard of fairness required by the Wednesbury test.

The judge’s decision

8.  The leave application was heard before DHCJ To on 25 April 2023. The judge held that the Board had given full reasons for its finding which could not be criticized as irrational. The judge further found that the applicant’s complaint about insufficient time and opportunity to arrange for relevant evidence is just an unsupported bare assertion.

9.  As for the ground concerning the alleged torture at the behest of state law enforcement agencies and those in the political circles, the applicant agreed at the hearing that the ill-treatments he received were the four incidents which caused him little harm and there is no evidence that state law enforcement agencies were involved in those incidents. The judge took the view that this ground was obviously copied from other applications for judicial review and has no bearing to the facts of this case. The judge also found that there is no substance in the rest of the applicant’s grounds. The judge concluded that the Board’s decision is utterly without fault and the applicant’s grounds are not reasonably arguable. Therefore, the judge dismissed the leave application on 5 May 2023.

Grounds of intended appeal

10.  The applicant stated his grounds of appeal in his written statement and affirmation which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country;

(2)  It was unsatisfactory for the court to rule that the applicant has no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(5)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditors and gangsters to find out the applicant’s new residence;

(6)  As he is wanted by the Vietnamese police for disturbing public order, he is worried that he would be brutally tortured by the Vietnamese police if he is caught by them;

(7)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

11.  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.

12.  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 5 May 2023 and the applicant was late by more than 5 weeks when he took out the summons at the court below on 27 June 2023[7]. The applicant did not provide any explanation for the delay.

13.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  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.

15.  The applicant was given the opportunity to make submissions before the judge at the oral hearing on 25 April 2023. His allegation that he was not given the opportunity to clarify his case is unfounded.

16.  The applicant had not raised the issue about being wanted by the Vietnamese police for disturbing public order in the previous applications before the lower court. It is not open for him to raise this new ground for the first time at this late stage of the proceedings. In any event, this ground is not supported by any particulars and evidence.

17.  The rest of his grounds are not viable. They are not supported by any particulars or evidence. The applicant failed to show that the judge was wrong in holding that there is no error of law or irrationality or procedural unfairness in the Board’s decision.

18.  For the above reasons, there is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 4 September 2023 for leave to appeal out of time.