NGUYEN TUAN ANH alias DAO DUNG MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 8/2022

[2022] HKCA 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 8 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1268 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 26 October 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 7 December 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 7 January 2022, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order dated “12 November 2021” dismissing his application for leave to apply for judicial review. No order was made in these proceedings on the said date. The applicant may have intended to refer to the order dated 7 December 2021 refusing to grant extension of time for him to lodge his appeal against the order dated 26 October 2021. In any event, in light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 26 October 2021.

4.  The applicant is a national of Vietnam. He is 34 years old. He was arrested in Hong Kong on 29 June 2020 for illegally staying in Hong Kong and for other offences. He lodged his non-refoulement claim on 19 December 2021 on the basis that he would be killed by his creditors in Vietnam due to an outstanding debt of some 2 billion Vietnamese Dong.

5.  By a Notice of Decision dated 25 May 2021, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decisions and an oral hearing of the appeal was held on 6 August 2021. The Board found the evidence of the applicant to be incredible, unreliable and/or implausible. The Board further found that the applicant could have relocated elsewhere in Vietnam and, in any event, he has failed to establish that he would face any real risk of harm in future if he was refouled there. Therefore, the applicant’s claim for non-refoulement was dismissed on 19 August 2021.

The judge’s decision

7.  On 9 September 2021, the applicant applied for leave to apply for judicial review out of time against the decision of the Board. He simply stated in his affirmation that he disagreed with the Board, and that it was dangerous for him to return to Vietnam. As he did not request for an oral hearing, DHCJ Lung considered the application on paper.

8.  The judge found that the applicant did not put forward any proper ground for his intended challenge of the Board’s decision, and there is no error of law or procedural unfairness in the Board’s decision. Thus, the judge dismissed the applicant’s application on 26 October 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons and in his supporting affirmation. He merely deposed that he did not understand court procedure. In his written submissions, which would appear to have been copied from some pro forma document produced often before this Court, the applicant’s contentions may be grouped under two broad grounds:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing 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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 26 October 2021. The applicant took out summons in the court below on 12 November 2021. He was late for two days and his explanation was repeated in his present summons, namely, that he did not understand court procedure and had no opportunity to clarify his case before the court. In our view, the applicant’s delay is unjustified.

12.  Even though the delay is unjustified, in light of the very short delay, we will focus on the merits of the case in considering whether extension of time should be granted.

13.  In assessing the merits of the intended appeal, the court 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.

14.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant’s written submissions are simply bare assertions and does not contain any arguable challenge against the decision of the judge. The judge has duly considered the applicant’s complaints against the Board and given a detailed explanation for rejecting the leave application in the judgment of 26 October 2021. The contentions in the applicant’s submissions do not engage with the judge’s reasoning. As noted earlier, they would appear to have been copied from some pro forma document and there is nothing to indicate that they should have any direct relevance and applicability to the present situation.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 26 October 2021 and dismiss the summons filed on 7 January 2022.