RE VI TRUNG TU

CAMP 134/2023, [2023] HKCA 763

On appeal from [2021] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1522 OF 2018)

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J U D G M E N T

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Hon Chu VP (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 18 May 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 together with a written statement to support his application.  

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, 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 the decisions of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 38.  He entered Hong Kong illegally and was arrested by the police on 2 January 2014.  On 9 March 2014, he lodged a non-refoulement claim based on fear of being (i)  harmed or even killed by his creditor due to his outstanding debt, and (ii)  jailed because his failure to repay a bank loan and compensate his customers whose goods were destroyed in a motor vehicle accident.  The details of the applicant’s claim were set out in the first decision of the Director at [6].  We will not repeat them.  

6.  By two decisions dated 8 September 2016 and 28 February 2017, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds while the further decision also takes into account the BOR 2 risk[5] ground.

7.  The applicant appealed the Director’s decisions to the Board.  The Board held an oral hearing on 6 December 2017, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 27 February 2018, the Board dismissed the appeal.  The Board accepted the applicant’s evidence that he was injured in a motor vehicle accident, during which his customers’ goods were damaged or destroyed and he owes money to a bank and another creditor.  The Board however found, for the reasons given in [56] to [60] of its decision, it was unlikely that the applicant would be imprisoned due to his outstanding indebtedness to the bank, and also did not accept that even if he were to face a prison sentence the prison conditions in Vietnam were so poor as to amount to mistreatment of a sufficient severity as to warrant international protection.  The Board also found that even if the applicant were to be sued by the owners of the goods there was no evidence to indicate this would result in harm to the applicant sufficient to warrant international protection.  As for his debt owed to a creditor, Mr Nguyen, the Board for the reasons given in [50] to [55], doubted the applicant’s evidence that he was harmed or threatened by Mr Nguyen before he left Vietnam and found the risk of harm to him was very low, which was further reduced by the availability of police assistance.  The Board further rejected the applicant’s claim that he would suffer harm because of his Chinese ethnicity^[61].  The Board concluded that none of the applicable grounds for protection was made out.  

8.  On 1 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Order 53 rule 4 of the Rules of the High Court provides that application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  The applicant’s Form 86 is out of time by more than two months.  There was no explanation for the delay.  The applicant also did not put forward any ground for seeking relief.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 18 May 2021, he refused to extend the time for applying for judicial review and dismissed the application for leave to apply for judicial review.  He gave his reasons at [14] to [18] as follows:

“14. In the Applicant’s case, a delay of more than 2 months must be considered as significant or substantial, 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 see any good or valid reason for his delay.

15. As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in his intended application.

16. 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.

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

18.  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.”

10.  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. 

11.  By a summons filed on 14 September 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 5 January 2023, and by his decision handed down on 12 January 2023[6] refused the application. 

12.  Under Order 59 rule 14(3)  of the Rules of the High Court, the applicant may within seven days from Deputy High Court Judge Bruno Chan’s refusal make a renewed application to this Court for extension of time to appeal.  On 31 March 2023, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.  The summons was late by more than two months, for which no explanation has been given.

13.  As to the renewed application to extend time for appealing against the refusal of leave to apply for judicial review, this 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. 

14.  The applicant was more than 15 months late when he made the application for extension of time to the court below.  This is very serious delay.  He explained to the Judge that the delay was due to the loss of his recognizance paper and the long time it took to have a replacement issued.  The Judge found that the recognizance paper was re-issued 13 January 2022 and there was no justification for the long delay thereafter until his summons filed on 14 September 2022.  We agree with the Judge.  In view of the undue and inordinate delay, the applicant must show that the intended appeal enjoys a real prospect of success.  

15.  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]. Relevantly, 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.

16.  In his supporting affirmation in support, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country.  He also asserted that the merits of this ground of appeal constitute sufficient reason for the court to exercise its discretion in allowing the appeal out of time. 

17.  The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given that he does not enjoy good health and is not an active person.  It is said that he will be disadvantaged in the labour market and may not be able to find a job to support himself.  It also said that with their nationwide network and connections with the police and government officials, his enemy can find him no matter where he goes.  The applicant further complained that the Director did not consider his human rights under the Basic Law and various international covenants.  Finally, it 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, if the applicant is repatriated, his life will be in danger.

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

(1)  What was stated in the applicant’s affirmation and written statement are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  The applicant has not identified any error in the Judge’s decision that warrants interference by this Court.

(2)  It is also the duty of the applicant to set out in the Form 86 his grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and his Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(3)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risks of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  Given that the applicant has not pointed to any error in the Board’s assessment, the assertion of fear of harm in the written statement has no proper factual foundation and cannot amount to arguable ground of appeal. 

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

19.  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.  

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 31 March 2023.