DO HUNG LOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 53/2022, [2023] HKCA 1081

On Appeal From [2020] HKCFI 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1789 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 K W Lung (“Judge”) dated 23 July 2020 refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 1 June 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 22 March 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1972.  He claims to have sneaked into Hong Kong on 1 September 2015.  He was arrested as an illegal immigrant on 5 September 2015, and raised a claim for non-refoulement protection by written representation dated 21 September 2015, on the ground that if he returned to Vietnam, he would be harmed or even killed by his creditor called Hung as he had not repaid the money owed to Hung arising from a loan of the equivalent of USD50,000.  The details of his claim are set out at [8] to [17] of the Board’s decision.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 22 March 2017, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  The Board took the view that the appeal could be determined without an oral hearing.  The Board noted that the harm feared was due to a private loan without any governmental involvement.  The Board considered that the incidents in 2014 and 2015 referred to by the applicant could not be regarded as amounting to torture.  The Board further found that reasonable state protection would be available to the applicant in Vietnam if he was ill-treated, and that the applicant could safely relocate to other areas in Vietnam without any real risk of the creditor locating him.  The Board therefore concluded that the applicant had failed to establish the requisite risk of harm upon refoulement.  Accordingly, in its decision dated 1 June 2018, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

5.  On 30 August 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  The grounds raised in the accompanying affirmation were summarised by the Judge at [10] of the Form CALL-1. They included that the Board had no evidence to conclude that the creditor would not kill the applicant; that the Board did not understand that creditors in Vietnam would pursue their debts with violence or even killing; that the Board did not consider the corruption in the Vietnamese government; and that the Board did not understand the household registration system in Vietnam which would make it difficult for the applicant to live elsewhere in Vietnam.

6.  The Judge, having heard the applicant in person at a hearing on 26 November 2019, issued his decision on 23 July 2020, refusing to grant leave to apply for judicial review.  The reasons were set out at [11] – [13] of the Form CALL‑1 as follows:

「 11. （決定書22-24 段）主要説明申請人與借貸人的債務是屬於私人借貸關係，同政府無關。決定書作出之推論是根據債主過往的行爲而作出的意見。債主的目的是取回借出的金錢，不是要他的性命。這個推論也不算不合理。委員會也考慮了越南政府官員貪污的情況，但是，它也考慮了其他國家對越南的司法情況的報告，認爲越南政府不容許貪污腐敗，也有能力制裁這樣的違法行爲。個別官員貪污不能夠推論爲整個政府無法執行其法律。至於戶籍問題，申請人沒有在委員會席前提出，也沒有向委員會提交有關資料以作考慮，所以，衹是屬於他個人的意見而已，不能夠用來支持他的申請。參考Nupur Mst v Director of Immigration [2018] HKCA 524 §14。

12. 基於以上的理由，申請人上面提出的主張不成立。

13. 根據上訴法庭在Ali Haider CACV8/2018, [2018] HKCA 222，13 & 14 段説明申請人申請的事實由入境事務處人員和審裁員作最後決定。在司法復核的程序當中，法院不會重新審查當中事實，除非審裁員在法律程序上犯了錯誤。然而，本席前並沒有任何証據，証明審裁員在法律程序上犯了任何錯誤。」

7.  The applicant did not file a notice of appeal, but instead filed a summons in the Court of First Instance on 18 August 2020 seeking an extension of time to appeal.  In the supporting affirmation of the same date, the applicant stated that he applied for leave to appeal out of time and that there was a good ground of appeal which had not necessarily been considered before, without however explaining what that ground was.  

8.  The applicant’s summons was dismissed by the Judge.  In his written decision dated 23 December 2021, the judge said that the applicant had not set out any valid ground for challenging the Board’s decision or pointed out any error in the court’s assessment of his application.  Extension of time was therefore refused as there was no realistic prospect of success in his intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 16 February 2022, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons, leave was sought to advance “a new sole ground of appeal” which was however not specified.  In the accompanying affirmation and “Statement” of the applicant, he said the families with whom he shared a mailbox placed the letter from the court in the common hallway so that he discovered it late.  He said the creditor and gangsters had threatened him that they would kill him if he did not pay the debt and that creditors and gangsters in Vietnam were cruel and violent and willing to disregard the law and kill people.  He requested that his deportation be postponed because he and his creditor had not yet agreed on a repayment plan.

10.  In his written submissions for the present application, in addition to the matters in his affirmation and statement, the applicant merely set out certain general legal principles and passages from authorities and statutes without stating how they are relevant to his case.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  On 18 August 2020, the applicant was in fact still within time for filing a notice of appeal against the Judge’s decision dated 23 July 2020, since the 14-day time limit did not run within the month of August (the court vacation) by virtue of section 31 of the High Court Ordinance (Cap 4).  It did not appear that the Judge took that fact into account in dealing with the summons for extension of time, contrary to the holding in Re Rana Jaswant [2019] 2 HKLRD 347, §8.8.

13.  In Re Rana Jaswant, the applicant was treated as appealing against the judge’s refusal to extend time for him to appeal against the dismissal of the application for leave for judicial review (see §8.4), and he appealed within time against that decision (see §§1.3 & 1.4). 

14.  In the present case, the summons in this court, if treated as an appeal against the Judge’s decision of 23 December 2021, would be more than a month out of time.  Further, whilst the present summons before this court on its face seeks leave to appeal against the Judge’s decision dated 23 December 2021, it should properly be treated as a renewed application for extension of time to appeal against the Judge’s decision of 23 July 2020: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, §§4-8.

15.  Whilst the fact that the applicant filed a summons in the court below on 18 August 2020 when a notice of appeal could have been filed within time is a matter in his favour, which, depending on the facts of the case, may incline a court towards extending time, the merits may still be taken into account by this court in deciding whether to grant an extension of time in these circumstances: Re Usman Yumiati [2021] HKCA 992; Re Jami Mahmood [2021] HKCA 993; Re Akif Muhammad [2021] HKCA 994.

16.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, the Board rejected the applicant’s non-refoulement claim for the reasons explained above including that reasonable state protection was available and internal relocation would be a viable option.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision and based on the country of origin information available to it. 

17.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits or evaluate and weigh the evidence again, and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s findings and ultimate decision unless they are vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The Judge held that the applicant had failed to show a reasonably arguable case for establishing any such public law grounds.

18.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review.

19.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.

[1]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).