RE NGUYEN MANH TAI

CAMP 565/2021

[2022] HKCA 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 565 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1144 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 C P Pang (“Judge”) on 28 January 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 May 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 14 December 2016 rejecting the applicant’s non-refoulement claim.

2.  On 10 November 2021, Deputy High Court Judge Suffiad refused to extend the time for the applicant to appeal against the Judge’s decision of 28 January 2021.[2]

Background

3.  The applicant is a Vietnamese national. He was arrested by the police in Hong Kong on 29 September 2014 after apparently entering Hong Kong without permission. He lodged his non-refoulement claim on 4 October 2014. His claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by his creditors for failure to repay his loans. The factual background was set out at [6.1] to [6.16] of the Director’s decision.

4.  By notice of decision dated 14 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

5.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 27 March 2018, but the applicant did not attend and apparently did not provide the Board with an explanation for his absence. Therefore, not having an opportunity to ask him questions at the hearing that it considered to go to core aspects of his case, the Board refused to give weight to the information provided by the applicant for the purposes of his claim.

6.  Even on the assumption that the applicant’s factual assertions were accepted, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable and that reasonable state protection was available. As a result, the Board dismissed the applicant’s appeal on 25 May 2018 on all applicable grounds.

The decisions in the court below

7.  On 20 June 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, the applicant deposed that his life would be in danger if he was refouled to Vietnam, because the officer from the bank and his creditors kept going to his house to look for him, threatened his family and locked up his house with a big iron chain. He feared being deprived of his life. However, the applicant did not raise any specific grounds for judicial review.

8.  Following consideration of the documents only, on 28 January 2021, the Judge refused to grant leave to apply for judicial review, the reasons for which were set out at [14] – [17] of the Form CALL‑1 as follows:

“ 14. In the present case, the applicant failed to attend the oral hearing scheduled for him and did not explain for his absence. It would not be improper for the Board to proceed to decide on the materials available to the Board. Neither in the Form 86 or in his affirmation that the applicant took issue with the course adopted by the Board. As there was no evidence to explain the queries it had on core issues, the Board was entitled not to attach weight to the information he provided to the Director. The Board rightly pointed out that there was no evidence to indicate that his sister was harmed at the hands of Hoa. In any event, even if the claimed primary facts were accepted, it was not satisfied that there would be real risk that the applicant would be harmed. The Board further found that internal relocation is a viable and reasonable option for him and reasonable state protection is available to him.

15. As mentioned above assessment of evidence, risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

16. The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a repetition of his claimed fear. There is no reasonably arguable basis to challenge the findings of the Board.

17. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.”

9.  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). Instead, eight months after the Judge’s decision, on 30 September 2021, the applicant took out a summons to seek an extension of time to appeal. In his supporting affirmation, the applicant explained that he was late because he did not receive any judgment from the court and he had lost his recognizance form.

10.  Upon considering the application on paper, on 10 November 2021, Deputy High Court Judge Suffiad refused to grant an extension of time to appeal, because he did not accept the applicant’s explanation for the delay, as explained at [5] of his decision:

“ 5. The court record shows that the decision of the Court was sent on the same day that decision was made to the last reported address of the Applicant without it being returned to the court as undelivered post. It is to be noted that in his present summons, the Applicant has given a different address. If there has been a change of address and the Applicant has failed to notify the court of such change, then that is a matter which the Applicant has only himself to blame.”

11.  The deputy judge also did not see any prospect of success in the intended appeal, and thus dismissed the summons.

The renewed application before this Court

12.  On 16 December 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the decision of the Judge dated 28 January 2021 refusing to grant leave for judicial review. In his supporting affirmation, the applicant stated that the rejection of his claim was unfair, and that the Board had acted in a procedurally unfair manner.

13.  The applicant lodged his written submissions on 29 December 2021, in which he argued that the Board unlawfully fettered its discretion, acted in a procedurally unfair manner, and did not carefully and thoroughly assess his case, and that the Board’s decision was unreasonable and irrational or was a result of procedural errors or unfairness. The applicant also argued that it was untrue that state protection was available, because his failed attempts to obtain police reports were clearly indicative of the seriousness of corruption in Vietnam and the ineffectiveness of the authorities. In addition, the applicant urged the authorities to put aside public policies of trying to dispose of non-refoulement claims as quickly as possible.

14.  However, in those submissions the applicant did not provide any details or particulars in support of his arguments (except as regards state protection), or as to any specific errors made by the Judge.

Discussion

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  If the court does not accept that the applicant’s explanation for delay is reasonable, the court will not extend time unless there is a real prospect of success in the appeal: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  The applicant’s intended appeal was late by many months. The delay was lengthy, and the applicant has not provided a satisfactory explanation for his lengthy delay.

19.  According to the court’s records, the Judge’s decision was sent by ordinary post to the applicant’s address for service on his Form 86. Even if the applicant had not received the Judge’s decision by mail, as the court’s records indicate, the applicant searched the court file on 12 March 2021 and would have been able to see the Judge’s decision. The applicant has not explained why he did not take steps to appeal until 30 September 2021.

20.  In any event, we have examined the merits of the intended appeal. As mentioned above, in his submissions the applicant did not provide any particulars in support of most of his arguments or as to any specific errors in the Judge’s decision. General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

21.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no grounds that point to any error by the Judge, the appeal should be dismissed.

22.  In the present case, the Board rejected the applicant’s non-refoulement claim because in the absence of hearing the applicant, it was not prepared to accept his allegations and also due to its finding that, even if his factual assertions were accepted, there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable and that reasonable state protection was available. These findings are within the province of the Board on the basis of the evidence available to it, and the court will not interfere with such assessments unless they are reversible on public law grounds. There do not appear to us to be any such grounds in this case.

23.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

24.  For the reasons above, 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 dismissed accordingly.