TRAN VAN NGOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 164/2023, [2023] HKCA 822

On Appeal From [2022] HKCFI 2940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 164 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2090 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) dated 11 October 2022 refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 25 April 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 22 December 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Vietnam, born in 1995. He claims to have entered Hong Kong illegally on 23 February 2017, and was arrested by the police on that day. Upon being referred to the Immigration Department, he lodged a torture claim by written representation on 22 March 2017. His claim was based on the fear that, if returned to Vietnam, he would be harmed or even killed by his creditor. The details of his claim are set out in paragraphs 16 to 28 of the Board’s decision dated 25 April 2018.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[1] BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4] By notice of decision dated 22 December 2017, the Director rejected the applicant’s claim for non-refoulement protection.

4.  The applicant appealed to the Board against the decision of the Director. The Board held a hearing on 12 March 2018, at which the applicant gave oral testimony. The Board found that there was no evidence whatsoever that the creditor had done anything to harm the applicant or his parents, or had threatened to harm or kill them for not being able to repay the loans. In addition, the Board found that the applicant could relocate within Vietnam in order to avoid the creditor. Accordingly, in its decision dated 25 April 2018, the Board concluded that the applicant’s claim failed in relation to all applicable grounds and dismissed his appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

5.  On 2 October 2018, after the expiry of the three-month time limit under Order 53 of the Rules of the High Court (Cap 4A), the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not specify any ground for judicial review in the Form 86. In the accompanying affirmation, the applicant said that the Board had neglected his evidence that the creditor had sent men to rebuke and threaten him.

6.  Based on consideration of the documents alone, on 11 October 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [20] – [22] of the Form CALL‑1 as follows:

「 20. 申請人沒有在表格86提出任何申請司法覆核許可的理由。他在2018年10月2日存檔的支持司法覆核許可申請的誓章，重複他的案情及所恐懼受到的傷害，並展示上訴委員會的決定書。他不認同上訴委員會的決定，但沒有指出上訴委員會的決定有任何或什麼錯誤，也沒有提供申請司法覆核的理據。實質上，他是籍司法覆核的名義質疑上訴委員會的事實裁定提出上訴。在欠缺具體的申請理由的情況下，法庭在審理司法覆核許可申請時，只可聚焦覆核上訴委員會在審理免遣返申請時，有沒有犯上法律錯誤、涉及程序不公平、或它的決定是否不合理。

21. 上訴委員會的裁定是基於申請人的聲請的案情，即他稱欠下的債務，以及債主對他的威脅。申請人不可能質疑這事實裁定。上訴委員會繼而將適用的法律原則適用於申請人聲請的案情，然後裁定他不能享有按照統一審核機制下任可一項適用的理由所給予的保護。這是一項法律及事實的裁定。就法律的裁定而言，上訴委員會沒有犯上法律錯誤。就事實的裁定而言，這是上訴委員會獨有的權限。.

22. 經認真及仔細審查上訴委員會的裁決書、相關的文件及證據後，法庭確認，上訴委員會正確地列舉了統一審核機制下四個適用的免遣返申請理由，正確地引用了適用的法律原則，並將這些原則正確地適用於它所裁定的事實，包括舉證標準和舉證責任，並引用了相關案例作為支援。上訴委員會正確地指出該聲請所涉及的事實和法律問題。法庭確定上訴委員會的決定完全沒有犯上絲毫法律錯誤，它的決定不存在可被視為程序不公平或「溫斯伯里」不合理的況（即按照Wednesbury一案所訂標準，原審法官只須審查案中證據，從而決定是否根據這些證據，一個合理的法官，對自己作出恰當的法律指引後，不可能會作出的決定）。申請人在本申請沒有合理可爭辯的論據，他的司法覆核申請沒有合理成功機會。因此，法庭拒絕申請人的司法覆核許可申請。」

7.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out a summons on 19 January 2023 to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant did not provide any explanation for his delay and simply claimed that there was a “good ground of appeal” which he did not however identify.

8.  In his written decision dated 13 February 2023, the Judge refused to extend time.

The renewed application before this Court

9.  By summons filed on 19 April 2023, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the accompanying affirmation, the applicant claimed that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in this country, and that the merits of this ground constituted sufficient reason for the court to extend time. In a “statement” filed with the summons, the applicant asserted that if he returned to Vietnam, his life would be seriously threatened, and that it was not feasible for him to relocate within Vietnam. The applicant has not lodged any further written submissions in support of his application.

10.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. The applicant had not given any explanation for his substantial delay in taking steps to appeal.

12.  It is important for the applicant to understand that judicial review is not a further avenue for appeal from the Board. Under the law, the Director and the Board are the decision-makers on the merits of his non-refoulement claim. The court’s jurisdiction in judicial review is supervisory in relation to compliance with law. An appeal to the Court of Appeal is not a further opportunity to re-argue the non-refoulement claim. It is incumbent upon an appellate to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

13.  In the present case, the Board found that on the basis of the applicant’s evidence, there was no sufficient basis for his non-refoulement claim, because the evidence does not justify a finding of risk of harm of the requisite severity and also because of the availability of internal relocation as a viable option. This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has failed to establish any such public law ground. As to the allegation made in the applicant’s affirmation filed in support of the Form 86 that the Board had neglected his evidence that the creditor had sent men to rebuke and threaten him, according to paragraphs 7 and 10 of Answer 35 in the applicant’s non-refoulement claim form, all that the applicant said was that the creditor phoned him to chase for repayment, on the basis of which the applicant said the creditor would harm him if he returned to Vietnam without making repayment. The applicant has not pointed to any evidence he gave to the Director or the Board that the creditor had actually sent men to threaten him. The applicant’s complaint is therefore not made out.

14.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review.

15.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.