RE PHAM VAN KHOA

CAMP 315/2021

[2021] HKCA 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 315 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 244 of 2021)

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JUDGMENT

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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 Lung (“the Judge”) dated 12 May 2021 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and a statement as well as lodged a written submission in support of his application.  The content of the statement is identical to that of the written submission.    

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 applicant’s summons, affirmation, statement and written submission, 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 decision of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 34.  He entered Hong Kong illegally and surrendered to the Immigration Department on 30 November 2015 to make a torture claim.  The claim was rejected by the Director on 25 November 2016.  His appeal to the Board was dismissed on 12 January 2018, and he was removed to Vietnam on 3 July 2018.  He later re-entered Hong Kong illegally and was arrested by the police on 14 November 2019.  He raised a non-refoulement claim based on fear of being harmed or killed by his creditor because of his failure to repay his loan.  The details of the applicant’s claim were set out in the Director decision at [7] and the Board’s decision at [10] to [50].  We will not repeat them.       

6.  By his decision dated 5 November 2020, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4]grounds.

7.  The applicant’s appeal against the Director’s decision to the Board was heard at an oral hearing held on 19 January 2021.  By its decision dated 10 February 2021, the Board dismissed the appeal.  The Board found the behaviour of the applicant was a nuisance rather than life-threatening.  The Board also found that state protection and internal relocation alternatives are reasonably available to the applicant, which would reduce or negate any risk of harm that the applicant may face.  The Board concluded that the applicant failed to show that he qualified for non-refoulement protection on any of the appliable grounds.

8.  On 26 February 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  He only stated in his affirmation that the decisions of the Director and the Board were grossly unfair and unjust.    

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 12 May 2021[5], the Judge refused the application.  In brief, the Judge found there was no error of law or procedural unfairness in the Board’s decision, and concluded that the intended judicial review has no reasonable prospect of success. 

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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 26 May 2021.

11.  By a summons filed on 11 June 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the paper.  By his decision handed down on 21 July 2021, the Judge dismissed the application[6]. 

12.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 4 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by a few days.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 about two weeks late when he filed the 11 June 2021 summons, which is not insubstantial.  Both in the application before the Judge and in this application, the applicant stated that he did not receive the Court’s decision in time.  The Court record shows that the Form CALL-1 was sent by post to Castle Peak Bay Immigration Centre, which was the address stated on the Form 86, but was returned undelivered as the applicant had been released on recognizance. After enquiry with the Immigration Department, the Form CALL-1 was posted to an updated address on 28 May 2021.  In these circumstances, we accept that the applicant received the Judge’s decision late, although we would point out that the fault lies with the applicant in not informing the court of the change in his address.  We would focus on the merits of the intended appeal.           

15.  In considering 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].

16.  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.

17.  In the present application, no ground in support of the intended appeal was put forward in the summons or the affirmation.

18.  In the statement and the written submission, the applicant stated that he was not satisfied with the Judge’s decision.  He reiterated that his creditor and gangsters had destroyed the things in his house and threatened to kill him if he didn’t repay his debt.  He asserted that his life would be at risk if he were refouled because his creditor and the gangsters have no regard for the law and will kill people out of anger.  He asked that his deportation be postponed as he has yet to agree a repayment plan with his creditor. Additionally, the applicant also complained that the Director did not consider his human right under the Basic Law, “Hong Kong Human Rights and Democracy Act” and International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. 

19.  In our view, the matters put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The Board has found that the creditor does not pose any threat or harm to the applicant’s life, and further held that state protection and internal relocation options are reasonably available to him. The applicant has not identified any ground to challenge these findings.  There is therefore no factual basis to support the assertion that he will be killed if he were to return to Vietnam. 

20.  There is further no basis for the complaint that the Director has not assessed his claim with regard to the relevant law and applicable grounds for non-refoulement protection.  It is evident from the Director’s decision that he had properly assessed the applicant’s claim.  In any event, the Board had properly taken into account all the applicable grounds.  The applicant has not pointed to any error in the Board’s decision.      

21.  We have also examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s dismissal 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 summons filed on 4 August 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] 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.

[3] 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.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2021] HKCFI 1290.

[6] [2021] HKCFI 1996.