NGUYEN DUC DONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 60/2021

[2021] HKCA 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 675 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 2 September 2020, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for seeking judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 9 October 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 16 September 2020.  The applicant’s summons was dismissed by DHCJ Bruno Chan on 28 January 2021[2].

3.  On 18 February 2021, the applicant filed the present summons with the Court of Appeal seeking leave to appeal against the decision dated 28 January 2021.  This summons should be treated as a renewed application for leave to appeal out of time against the judge's decision of 2 September 2020: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Vietnam.  He is 38 years old.  He entered Hong Kong illegally on 4 January 2017 and was arrested by the police on 5 January 2017.  On 23 January 2017, he raised a non‑refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay the loan if he returns to Vietnam.

The Director’s decision

5.  By a Notice of Decision dated 20 September 2017, 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].

The Board’s decision

6.  On 4 October 2017, the applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 19 January 2018.  The Board found that the applicant came to Hong Kong to avoid repaying the loan instead of fearing to be harmed or killed by his creditor.  The Board assessed that the applicant’s previous injuries are not serious at all and do not fall within the meaning of torture or the kind of ill-treatment contemplated in BOR 3.  This also reflected that the creditor has no intention to kill the applicant.  The Board further considered that the applicant’s problem arose from a private dispute and does not fall within the definition of persecution.  It also held that the applicant should be able to live a normal life in other places in Vietnam to avoid the creditor and/or his men.  Therefore, the Board dismissed the appeal on 13 March 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 19 April 2018 for leave to apply for judicial review against the decision of the Board. 

The judge’s decision

8.  DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing.  The applicant did not provide any specific grounds for his intended challenge.  Notwithstanding this, the judge reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny.  He concluded that there is no 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.  Therefore, the judge held that there is no prospect of success in the applicant’s intended application for judicial review and dismissed the leave application on 2 September 2020. 

Grounds of intended appeal

9.  In the present application, the applicant did not state any grounds of appeal in his summons or affirmation.

10.  In his written submissions, he reiterated the background leading to the loan and the failure to repay the loan as well as the description of the previous attacks and death threat from the creditor and/or his men.  He also submitted that he tried to report the case to the police in Vietnam but the police refused to handle the matter. 

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 2 September 2020.  The applicant took out a summons for leave to appeal out of time at the court below on 9 October 2020.  He was late by more than three weeks.

13.  The applicant told the judge at the hearing below that he did not notice the letter containing the decision in his mailbox.  When he eventually retrieved the letter, the time for appeal has already expired.  The decision was sent to the applicant’s address by post on the same day when the decision was handed down.  It was the applicant’s own fault for failing to check his mailbox in a timely manner.  The applicant’s explanation cannot justify his delay.

14.  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.

15.  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.

16.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, no viable ground has been put forward by the applicant to reverse the judge’s decision.  The applicant has also failed to adduce any evidence to refute the Board’s findings.  He failed to show that he has any prospect of success in his intended appeal.  We therefore refuse to grant leave to appeal against the judge’s decision of 2 September 2020 out of time and dismiss the summons filed on 18 February 2021.