RE BUI VAN SINH

CAMP 19/2022

[2022] HKCA 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 493 OF 2021)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 20 April 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written statement and a written submission to support his application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 31.  He entered Hong Kong illegally and was arrested by the police on 2 April 2020.  He later raised a non-refoulement claim based on her fear of being harmed or killed by his creditor and his followers due to his inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By his decision dated 13 April 2021, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  By its decision dated 19 March 2021, the Board dismissed the appeal.  In [16] to [21] of the decision, the Board gave its reasons for deciding to deal with the appeal without an oral hearing.  The Board considered the level of risk of harm the applicant would face is low as the creditor and his people had only made verbal threats and had not inflicted any physical harm on him.  The Board also found that his problem is a private debt with nothing to do with the Vietnamese government or authorities.  The Board further held that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk that the applicant may face.  The Board concluded that the claim failed on all applicable grounds.

8.  On 9 April 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any specific ground for seeking relief.  He merely stated in his affirmation that it would not be safe for him to return to Vietnam.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 20 April 2021, he refused to give leave to apply for judicial review for the reasons set out in [10] to [14] as follows:

“10. As such 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 reasonably arguable basis for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

13. 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 irrationality 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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 29 June 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The applicant was absent at the oral hearing on 10 November 2021. By his decision handed down on 23 November 2021[6], the Judge refused the application. 

12.  On 14 January 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of 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. 

14.  The applicant was eight weeks late when he made the application for extension of time on 29 June 2021. He explained the delay on the basis that the Judge’s order was written in English which he did not understand, he was not aware of the deadline for appeal, and he needed help from his friend to complete the documentation but his friend could only help him when he had time.  While we accept that the applicant is not familiar with the legal process and may have difficulty understanding English, we do not find the explanation entirely satisfactory given that eight weeks is a significant delay and a litigant is under a duty to act expeditiously.  Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.    

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which 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.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  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 affirmation in support of the present application, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country.  He also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time. 

18.  The applicant’s written submission gives an outline of his claim and the procedural history.  Under the “Submission” section, it quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[7] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness.  It is said that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing his credibility.  It also complains that the Director did not consider the applicant’s human rights under the Basic Law and various international covenants.  Finally, it says that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, his life will be in danger as he has not yet agreed a repayment plan with the creditor. 

19.  The arguments in the written statement lodged on 14 January 2022 are similar to [18] to [21] of the written submission.         

20.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1) What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  It is the duty of the applicant to set out in his Form 86 his grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and his Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(2) The Board had not made adverse finding on the credibility of the applicant or the primary facts underlying his claim.  The applicant’s complaint that the Board did not fairly or properly assess his credibility is therefore misplaced.

(3) In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written submission cannot amount to arguable ground of appeal. 

(4) As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

21.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.           

22.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 14 January 2022. 

[1] [2021] HKCFI 1065

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2021] HKCFI 3455

[7] Misquoted as “ST v Director of Immigration” in the applicant’s written submission.