RE NGUYEN TUAN VINH

CAMP 203/2023, [2024] HKCA 265

On Appeal From [2022] HKCFI 3176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 203 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 708 OF 2022)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 1 June 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 16 February 2023 ([2023] HKCFI 416) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 14 October 2022 ([2022] HKCFI 3176) (“the Leave Decision”) refusing to grant extension of time for leave to apply for judicial review and dismissing his leave application.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 26 May 2021, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 14 January 2021 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 28 May 2019.  On 10 September 2019, he was arrested by police and was later convicted of various criminal offences and sentenced to 14 months imprisonment.  On 8 May 2020, he raised a non‑refoulement claim on the basis that if returned to Vietnam, he would be harmed or killed by the local officials from his home village due to his father’s dispute with them over the compensation for the resumption of his family land by the officials.  Details of the applicant’s claim have been summarised by the Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 14 January 2021 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 26 May 2021, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board accepted the Applicant’s claim of land dispute between his father and the local officials in his home village but found no adverse interests in him as he was then just a child and was never involved in such dispute, nor is there any reliable evidence other than his own bare assertions of any discriminations by the government or authorities against him including any refusal of the issue of the national identity card to him, and that relevant COI show that there are laws and legal system in Vietnam to protect the rights of its citizens from any abuses by local corrupt officials that state protection will be available to the Applicant if needed upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by any corrupt local officials that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 2 August 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By that time, he was almost one year late in taking out his application.  No ground of review was given in the Form 86.  In his supporting affirmation, he did not agree with the Board’s Decision and only stated that his life would still be in danger in his home country.

THE JUDGE’S DECISION

8.  On 14 October 2022, as the applicant did not request for an oral hearing, the Judge determined his application on paper and refused to grant the applicant extension of time and dismissed his application for leave to apply for judicial review.  His reasons were stated at [14] ‑ [19] of the Leave Decision:

“14. In the Applicant’s case, a delay of almost 1 year must be considered as extremely substantial and inordinate, for which he did not provided any explanation in his Form or affirmation, and as the record shows that the decision as sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

15. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended challenge.

16. As clearly shown in its decision, the Board rejected the Applicant’s claim essentially on its findings of no proper basis or substance to believe there would be any risk of any harm from anyone to him upon his return to Vietnam for the thorough and detailed analysis and reasoning set out in paragraphs 59 ‑ 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 merits in his intended application either.

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

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 1 November 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was four days late with his intended appeal.

11.  On 16 February 2023, the Judge refused the applicant’s application.  Although a delay of four days might not be considered significant, the Judge held that in the absence of any error in the decision being clearly and properly identified by the applicant, there was no prospect of success in his intended appeal.

THIS APPLICATION

12.  By a summons, a supporting affirmation and a written statement all filed on 1 June 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, the applicant did not give any reason for his delay or any ground of review.  In his supporting affirmation, the applicant alleged that the court’s decisions were procedurally unfair without allowing him the opportunity to clarify his case and situation in his home country.

13.  In his written statement, the applicant repeated the factual basis and procedural history of his non-refoulement claim.  He alleged that the problems in his home country still persisted and it was unfeasible for him to internally relocate in Vietnam.  He also alleged that the situation of corruption between gangsters and the police in Vietnam made it very dangerous for him to escape to another place in Vietnam.  He further stated that the Immigration Department failed to consider various legal provisions but did not elaborate or point to any specific particulars in support of his allegations.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  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.

16.  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].

17.  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)]).

18.  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.

19.  Although the applicant’s delay of four days is not significant, we are of the view that his intended appeal has no merit.  The complaints as set out in his summons, supporting affirmation and written statement are general allegations without particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As the applicant did not request for an oral hearing, it was open for the Judge to consider his application on paper after considering the materials advanced by him.  In any event, the applicant already had ample opportunities to present his case and situation before the Judge.  There is plainly no substance in his complaints.

20.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

21.  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 Leave Decision.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 1 June 2023 is dismissed.