VU NGOC DAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 355/2023, [2024] HKCA 931

On appeal from [2022] HKCFI 2337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 355 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1029 OF 2019)

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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 3 August 2022, Deputy High Court Judge To refused to grant extension of time and dismissed the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim[1].

2.  On 29 August 2023, the applicant filed a summons for extension of time to appeal against the said decision. On 11 September 2023, the judge directed the applicant to file his grounds of the proposed appeal within 14 days. The directions stipulated that if no such grounds had been received as required, the applicant’s application would be dismissed. The summons was dismissed by the judge on 4 October 2023 for the applicant’s failure comply with the said directions.

3.  On 24 November 2023, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the order dated 3 August 2022 and the order dated 4 October 2023. This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 3 August 2022 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Vietnam. He entered Hong Kong on 1 November 2015 illegally. He surrendered to the Immigration Department on 2 November 2015 and lodged a non-refoulement claim on the same day. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 25 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The applicant lodged an appeal against the Director’s decision to the Board out of time on 22 June 2017. On 11 January 2019, the Board refused the application for late filing of the Notice of Appeal as the applicant failed to explain the delay and there is no obvious or exceptional reason for allowing the application for late filing.

The intended judicial review

7.  On 16 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 1029/2019 to seek leave to bring judicial review against the Board’s decision. The leave application was filed out of time. In his supporting affirmation, the applicant only stated the danger he may face in Vietnam and his reason for the late filing of appeal, without stating any grounds for his intended challenge.

The judge’s decision

8.  DHCJ To dealt with the leave application on paper. The judge held, among other things, that the Director and the Board have both observed a very high standard of fairness. The judge considered that the Board’s decision was utterly without fault and the applicant has no realistic prospect of success in the proposed judicial review. Therefore, the judge refused to grant extension of time and dismissed the leave application on 3 August 2022.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in his affirmation and written submissions which may be summarised as follows:

(1)  The applicant would not receive reasonable protection from the Vietnamese police;

(2)  The Director’s decision that it is the applicant’s own speculation the Vietnamese police will not provide protection to him is unfair;

(3)  It is unreasonable for the Director to assess that the risk of harm from the applicant’s creditors and their associates is low;

(4)  It will still be dangerous for the applicant to relocate to other cities in Vietnam;

(5)  There is public importance in this application so the applicant seeks the court’s discretion to give him an opportunity to explain his case in court.

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 order was made on 3 August 2022. The applicant was late for more than 10 months when he filed his summons at the court below on 29 August 2023, exclusive of the court’s summer vacation in August.

12.  The applicant explained that the time for appeal has nearly expired when the court documents reached him in prison and he needed further time to have the documents sent to his family to seek professional help as his education level and language ability is low. All these have caused delay in filing the application.

13.  We do not think this explanation can justify his substantial delay of more than 10 months.

14.  Where a delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  The applicant’s grounds in the present application were not raised in his leave application before the judge. The Court of Appeal will not generally entertain new arguments that are fact-sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time. In any event, the applicant failed to put forward any reasonably arguable grounds against the judge’s decision to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  There is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 24 November 2023.