RE NGUYEN VAN CUONG

CAMP 337/2022, [2023] HKCA 1221

On Appeal From [2021] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 337 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 301 OF 2018)

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J U D G M E N T

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

1.  On 11 August 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 9 November 2021, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 19 July 2022. 

3.  On 5 September 2022, the applicant filed a summons in CAMP 337/2022 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.   

4.  Pursuant to the directions given by the Registrar of Civil Appeals on 5 September 2022, the applicant should lodge his written submissions on or before 19 September 2022.  However, he failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a Vietnamese national.  He last entered Hong Kong illegally on 25 August 2015 and surrendered to the Immigration Department on 28 August 2015.  On 19 January 2016, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan.  He had repeatedly sneaked into Hong Kong and had been repatriated to Vietnam on no less than 4 occasions previously.  The factual background of this case was succinctly summarised by the Judge at [1] - [6] of the JR Decision ([2021] HKCFI 2268).

7.  By a Notice of Decision dated 7 November 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].

8.  On 26 February 2018, the applicant filed a Form No. 86 saying that the judgment, order, decision or other proceeding in respect of which relief is sought was “my case Torture Claims Appeal Board”.  This was despite the fact that he had not yet lodged an appeal to the Torture Claims Appeal Board (“the Board”).  In his supporting affirmation he only said that in Vietnam, the mafia wanted to kill him and they had taken his house.  He also said “My case Torture Claim appeal Board is reject”.  The applicant lodged an appeal to the Board on 8 October 2019.  In light of that, the Judge adjourned the proceedings pending the outcome of the applicant’s appeal to the Board.

9.  The applicant attended an oral hearing before the Board on 3 July 2020.  By its decision dated 23 June 2021, the Board dismissed the appeal.  The Board did not accept the applicant’s case that he had been threatened by his creditor because of significant inconsistencies and discrepancies in his evidence.  The Board also considered that many parts of the applicant’s case are inherently improbable.  The Board further found that that even if there is any risk of harm, state protection and internal relocation were available.  Therefore, the Board concluded that the applicant’s claim failed on all applicable grounds. 

Application for leave to start judicial review

10.  Upon receiving the Board’s decision, the court invited the applicant to lodge written submissions in support of his leave application.  In the applicant’s written submissions, he reiterated the problems he faced in Vietnam without putting forward any specific grounds for his intended challenge.

The JR Decision

11.  The Judge considered the application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave for the applicant to apply for judicial review for reasons set out in [15] to [17] of the JR Decision:  

“15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 81 – 89 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 reasonably arguable basis to challenge the finding of the Board.  

16.  Furthermore, 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 the Applicant’s claim 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.     

17.  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.”

Application for extension of time to appeal against the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 9 November 2021 for an extension of time to appeal.  That was dismissed by the Judge on 19 July 2022.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.  As for (1), the applicant was late by 8 weeks when he filed the time extension summons with the Court of First Instance, exclusive of the court’s summer vacation in August 2021.  The delay is substantial.

15.  As for (2), the reasons for the delay, the applicant explained that he used his friend’s address to receive his mail and he relied on his friend to translate the documents to him, but his friend was too busy and the applicant was only informed of the court’s decision in early November 2021. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).  Therefore, the applicant’s explanation cannot justify the substantial delay. 

16.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

17.  The applicant stated the following grounds of appeal in his written statement:

(1)  It was unsatisfactory for the court to rule that the applicant had no chance of success in reviewing the decision of the Board.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(3)  If the applicant returns to Vietnam, his life will be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.

(4)  All oral evidence provided by the applicant to the Director and the Board is true but they did not accept his oral evidence.  It was impossible for the applicant to gather evidence which was against the whole regime of the Vietnamese state.  They also did not investigate or take any measures to prove the issues he provided are not true.  They were completely subjective in evaluating the evidence. 

(5)  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.

18.  In his supporting affirmation, he further stated that the court’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

19.  Pursuant to Order 53 rule 3(3) of RHC, the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  As the applicant did not request an oral hearing in his Form 86, the Judge was within his power to determine his application on paper.  Besides, the applicant had the opportunity to make submissions in his written submissions for the court’s consideration.  There is no basis for him to challenge the Judge for reaching his decision unfairly without allowing him an opportunity to clarify his case.

20.  The applicant’s complaints against the Board were not raised in the leave application before the Court of First Instance.  It is not open to the applicant to put forward these grounds for the first time at this stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

21.  In any event, his grounds are just bare assertions without particulars or basis.  He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

22.  We are satisfied that the Judge had reviewed the decision of the Board with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 5 September 2022.