NGUYEN QUOC CUONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 326/2022

[2022] HKCA 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 326 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 631 OF 2021)

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J U D G M E N T

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

1.  On 31 August 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 26 July 2022 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order of 22 October 2021 (“the Order”) refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 May 2018 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 under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam. He entered Hong Kong illegally on 3 February 2018 and was arrested by the police on 5 February 2018 for the offence of theft. While being on bail pending his trial for the said offence, he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Vietnam, he would be harmed or killed by the police and Vietnamese authorities for taking part in a protest against government corruption. Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form ([2021] HKCFI 3089).

5.  By a Notice of Decision dated 25 March 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  The Applicant appealed the Director’s decision to the Board. On 6 September 2019, 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 §7 of the CALL-1 Form, as follows:

“In its decision the Board found no reliable evidence from the materials and information provided by him previously to the Director and available before the Board as well as from his lawyer from DLS at his appeal hearing that the Applicant is being wanted or targeted by the Vietnamese police or authorities over his participation in a peaceful protest that occurred years ago, that reliable COI show that any such fear of persecution from the authorities upon his return to Vietnam is unfounded, and that it did not find any real chance of him being harmed by anyone if refouled to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

7.  On 5 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

8.  On 22 October 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[10] As the last day of the 3-month period for him to file his Form 86 fell on 6 December 2019, the Applicant was therefore almost 17 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

[11] In the Applicant’s case, a delay of almost 17 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

[12] As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth 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 application either.

…..

[14] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding of any reliable evidence that he is being wanted or targeted by the Vietnamese authorities or of any risk of harm from them for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 96 of its decision, and that in the absence of any explanation from him for his failure to attend his oral hearing and given the fact that he was then legally represented that the Board was also entitled to proceed to deal with his appeal in his absence, 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.

[15] 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.

[16] 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.  On 26 July 2022, the Judge refused the Applicant’s application by summons dated 10 January 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2175).

THIS APPLICATION

10.  By a summons taken out on 31 August 2022, the Applicant applied for leave to appeal out of time against the order of the Judge dated 26 July 2022.

11.  In his supporting affirmation filed on the same date, the Applicant wrote:

“1. The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify the case and situation in my country.

2. I believe that merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”

12.  On the same date, the Applicant lodged a 3-page “Statement”. In that document, the Applicant repeated, inter alia, that he would be beaten or killed if refouled back to Vietnam.

13.  The Applicant did not lodge any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 31 August 2022.

DISCUSSION

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

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 are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.  The Applicant’s complaint that the Judge’s decision “has been reached unfairly without allowing (him) an opportunity to clarify (his) case and situation in (his) country” is without substance. Since the Applicant did not request for an oral hearing of his leave application in the Form 86, it was within the Judge’s discretion to dispose of the application on paper pursuant to Order 53, Rule 3(3) of the Rules of the High Court.

20.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 22 October 2021, and has failed to raise any viable ground of appeal against the Order.

21.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the Applicant’s summons of 31 August 2022 is dismissed.