RE PHAM VAN HANH

CAMP 494/2021

[2022] HKCA 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 494 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1153 OF 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 April 2021[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written statement to support the application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written statement, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against two decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 50. On 8 April 2015, he surrendered to the Immigration Department and admitted to having entered Hong Kong illegally. He later raised a non-refoulement claim.

6.  The applicant’s claim is based on his fear of being harmed or killed by his creditor, who has a triad background, due to his inability to repay his loan. The details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.

7.  By two decisions dated 9 September 2016 and 22 March 2017, the Director rejected the applicant’s claim. The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the further decision related to the BOR 2 risk^[5] ground.

8.  The applicant appealed the Director’s decision to the Board. A hearing was held on 13 November 2017 during which he gave evidence and answered questions from the Board. By its decision dated 29 December 2017, the Board dismissed the appeal. The Board found the applicant’s claim incredible, having regard to its inherent inconsistencies and the contradictions between the version he gave to the Director and that before the Board. The Board did not accept he had made a loan or he had been threatened, assaulted or detained by his creditor. The Board further found that, even if his claim was to be believed, the risk of harm the applicant may face would be very low, and would further be reduced or negated by the availability of state protection and internal relocation options. The Board concluded that the claim failed on all applicable grounds.

9.  On 21 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He stated in his affirmation that the Board’s finding that his evidence and claim were not were unfair. He explained that he was still in fear when relating his experiences in Vietnam.

10.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose. When the applicant filed his Form 86, the applicant was about 11 weeks late.

11.  The Judge refused to extend the time for the applicant to apply for leave to apply for judicial review and gave his reasons in [13] to [18] of the Form CALL-1 as follows:

“13. In the Applicant’s case, a delay of 11 weeks must be considered as substantial or significant, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not find any good or valid reason for his delay.

14. As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward or any proper grounds or complaint or identify any error of law or irrationality or procedural unfairness in his process before the Board or in its decision. As such I do not find any reasonably arguable basis for his intended challenge.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.”

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

13.  By a summons filed on 24 May 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The applicant was absent at the hearing and the Judge proceeded to deal with the application on paper. By his decision handed down on 2 September 2021, the Judge refused the application.

14.  On 3 November 2021, the applicant filed the present summons to appeal against the Judge’s decision of 2 September 2021. This is not a correct step to take. The proper procedure is to make a further application to this Court for extension of time to appeal the Judge’s decision of 30 April 2021. We will treat the summons as a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

15.  In considering whether to extend time for appealing against the refusal of 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.

16.  The applicant was ten days late when he made the application for extension of time on 24 May 2021. He explained he received the Judge’s decision late as he had just his address but did not inform the Court. We do not find the explanation satisfactory as a litigant has a duty to inform the Court promptly of any change in address. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

17.  In assessing the merits of the intended appeal, we 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].

18.  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 judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.  The applicant has not provided any ground in support of his application. He only asked for leave to advance a new ground of appeal in his summons, but did not set out the content of the ground.

20.  In his written statement, the applicant reiterated that when he failed to repay his debt, his creditor and gangsters assaulted him, destroyed the things in his house and threatened to kill him. He complained that the Director did not consider his human rights under the Basic Law and various international covenants. He further said that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, as he has not yet agreed a repayment plan with his creditor, he will surely be killed upon his repatriation to Vietnam.

21.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1) The applicant only asserted in his summons that he had a new ground of appeal but did not give any elaboration on it. This is hardly a proper ground of appeal.

(2) Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the very full reasons it gave, rejected the applicant’s claim of having been threatened and assaulted by his creditor and his followers. In the circumstances, the applicant’s assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.

(3) As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s decision has been superseded and is no longer susceptible to judicial review.

22.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to extend the time for applying for judicial review and dismissing the application for leave to apply for judicial review.

23.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of extension of time and dismissal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal.

24.  For the above reasons, we dismiss the applicant’s summons filed on 3 November 2021.