NGUYEN VAN TUNG v. TORTURE CLAIMS APPEAL BOARD

CAMP 317/2021

[2022] HKCA 545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 317 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1276 OF 2018)

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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 5 August 2021, the Applicant took out a summons with a supporting affirmation applying for “leave to appeal” against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 25 May 2021 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier decision dated 9 December 2019 refusing to grant leave to the Applicant to apply for judicial review.

2.  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

3.  The Applicant is a citizen of Vietnam.  On 5 October 2015, he entered Hong Kong illegally, and on 7 October 2015 he surrendered to the Immigration Department.  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.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2019] HKCFI 2552).

4.  By a Notice of Decision dated 28 April 2017, the Director of Immigration (“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] (“the Director’s Decision”).

5.  On 15 May 2017, the Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”).  On 13 November 2017, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board accepted the Applicant’s account of having been pressed by his creditor for repayment of his loan.  However, the Board found that the claimed threats from the creditor did not amount to any real risk of harm or attain the minimum level of severity for any of the applicable risks.  The Board also found that state/police protection and reasonable internal relocation were available for the Applicant to move safely with his family to other parts of Vietnam where it would not be possible for his creditor to locate him.

6.  Accordingly, the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

JUDGE’S DECISION

7.  On 4 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.  On 9 December 2019, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§13-15 of Form CALL-1, the Judge stated as follows:

“13. As the last day of the three-month period for him to file his Form 86 fell on 13 February 2018, the Applicant was therefore late by more than four months with his intended 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 merit of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of more than four months must be considered as significant or substantial, for which he explained at the hearing that as he was unrepresented and was not aware of the law, he did not know when or how to apply for judicial review until he was informed by his immigration officer when by then he was already way out of time with his intended application. Ignorance of the law of course can never be accepted as any explanation or reason for its non-compliance, and as such I do not accept that the Applicant has provided any valid reason for his substantial delay.

15.  As for the merit, if any, of his intended application, as noted above the Applicant did not provide any particulars or specifics or elaborations in support of his single ground for his intended challenge, and given the nature of his claim and the fact that he never sought assistance from the police or authority, I do not find any relevancy in the state of corruptions in Vietnam to his claim, nor do I find this ground reasonably arguable for his intended application.”

9.  On 21 May 2021, the Judge dismissed the Applicant’s summons taken out on 6 January 2021 for extension of time to appeal.

THIS APPLICATION

10.  By a summons taken out on 5 August 2021, the Applicant applied to this Court for “leave to appeal” against the Judge’s order of21 May 2021.  In his supporting affirmation filed 5 August 2021, the Applicant merely reiterated the factual basis of his non-refoulement claim.

11.  The Applicant has failed to lodge any written submissions with the court despite the directions of the Registrar of Civil Appeals dated 5 August 2021.

DISCUSSION

12.  Following the approach this Court has adopted 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.

13.  In deciding whether to extend time to appeal, this 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.

14.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

16.  The Applicant’s delay of over a year is very substantial.  He has not provided any explanation for his delay.  

17.  The Applicant has failed to identify any specific error in the judgment, or raised any viable ground of appeal against the judgment.  The mere repetition of the factual basis of his non-refoulement claim is not a valid ground of appeal against the judgment.

18.  There is no reasonable, or real, prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons of 5 August 2021 is dismissed.

20.  This judgment is written in English because the decisions below are written in English.  We note that the Applicant’s summons and affirmation of 5 August 2021 are written in Chinese, while he was assisted by a Vietnamese interpreter at the hearing of the leave application on 28 August 2019.  At that hearing, the Applicant stated that he could not read English or Chinese.  If required, the Applicant may apply to the court for this judgment to be orally interpreted to him by a Vietnamese interpreter.