LUU VAN HOC alias LUU VAN HOI v. DIRECTOR OF LEGAL AID

HCAL 1789/2023

[2023] HKCFI 2649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1789 OF 2023

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D E C I S I O N

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A. Introduction

1.  By his Form 86 dated 6 October 2023, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Legal Aid, dated 15 September 2023, refusing the Applicant’s application for legal aid (“Decision”).

2.  I am satisfied that I can appropriately deal with this application on the papers.  This is my decision.

B.  Context of Application

3.  Together with his Form 86, the Applicant filed his affirmation, exhibiting a copy of the Decision, and providing further background information.

4.  The Applicant is a Vietnamese national.  He says he came to Hong Kong to seek refuge on 5 November 2014, and surrendered to authorities on that day.  He made a non-refoulement claim (“NRC”), which was later rejected by the Director of Immigration (“Director”). He then lodged an appeal with the Torture Claims Appeal Board (“Board”), which dismissed his appeal.

5.  The Applicant subsequently filed a Form 86 intending to seek leave to challenge by way of judicial review the decisions of the Director and the Board.  Later, whilst his appeal had not yet been listed to be heard, he withdrew his appeal.  But, the Applicant says, it was “unduly dismissed” on 29 April 2022.

6.  In his affirmation, the Applicant also referred to CAMP 35/2023 as having discussed extensively the basis of his NRC.  In short, his claim was based on his fear of being harmed or killed by his creditor or a gangster, who was a loan shark and had a triad background, due to his inability to repay his loan.

7.  The Applicant complains that he has been without legal representation, and that every time he has been denied any sort of legal assistance, except for “just some cowboys running an alternative legal system for refugees”.  He also complains about the difficulty in obtaining translations of documents, which (he says)  is in itself procedural unfairness.

8.  The Applicant says his case is in its final stages, at the last refuge for seeking justice, the Court of Final Appeal.  He says that granting him legal aid would help ensure that the NRC process is fair and impartial.  He says that without legal aid, there will be no access to justice and that granting him legal aid would uphold the rule of law by ensuring that everyone, regardless of their immigration status or background, has access to legal remedies and a fair legal process.  He suggests that the courts would have taken a different route and would have granted him leave to apply had he been legally represented.

9.  Though he did not provide a copy of the decision in CAMP 35/2023, it can be found from the Judiciary website.  The Judgment of the Court of Appeal, [2023] HKCA 653, is dated 11 May 2023. In the Judgment, the Court of Appeal rehearsed some of the background, and explained the reasons for dismissing the Applicant’s application.  Amongst other things, the following was set out:

(1)  The Applicant had attended a hearing before the Board on 23 January 2019.

(2)  By its decision dated 22 March 2019, the Board dismissed the Applicant’s appeal.

(3)  It did so because, in essence, the Board found that the Applicant’s claim was not credible, having regard to its inherent inconsistencies and the contradictions between the evidence he gave at the hearing and the information he provided in his NRC form.  The Board also gave other reasons for dismissing the appeal.

(4)  Following the Board’s decision, the Applicant filed a Form 86 and affirmation on 23 April 2019, seeking leave to apply for judicial review against the decision of the Board.  His Form 86 put forward four proposed grounds of review.

(5)  On 19 September 2019, the Applicant wrote to the Court seeking to withdraw that application.  His stated basis was that his persecution in Vietnam had been solved and that he had to return to Vietnam to look after his grandparents.

(6)  On 29 April 2022, the Judge acceded to the Applicant’s request to withdraw his application and dismissed the application for leave to apply for judicial review.

(7)  The 14-day period for the Applicant to appeal the Judge’s decision expired on 13 May 2022.

(8)  About 6 months later, on 17 November 2022, the Applicant applied for an extension of time to appeal the Judge’s decision.

(9)  The Judge dealt with the application on the papers, and by decision dated 5 January 2023 refused the application on the basis that the Applicant’s application for leave to apply for judicial review had been dismissed upon his own application for withdrawal, and that he could not appeal against the Court’s decision.

(10)  The Applicant’s application to the Court of Appeal was treated 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.

(11)  However, the Applicant provided no grounds of appeal, merely suggesting that there is a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.

(12)  The delay of around 6 months was substantial, and had not been properly explained.

(13)  In any event, there were no merits in the intended appeal.

(14)  First, the Applicant had on his own motion applied to the Court to withdraw his application for leave to apply for judicial review.  Once the Judge acceded to that withdrawal request, there was nothing outstanding in the action and the Judge was correct to conclude the action by ordering a dismissal of the application, rather than leaving the action at large.

(15)  Second, it is not open to the Applicant to criticise the Judge for not considering any of his proposed grounds of review, because the Applicant had applied to withdraw his application and it was not necessary for the Judge to adjudicate on the merits of that application.

(16)  Therefore, the Applicant’s intended appeal has no prospect of success, and the discretion to grant the extension of time sought was refused.

10.  It is not entirely clear from the papers filed by the Applicant whether he had already made a further application to the Court of Final Appeal.  However, from the content of the Decision, it seems that the Applicant first sought legal aid.

C.  The Decision

11.  The Decision is in the following terms:

We refer to your legal aid application.

Legal Aid will be granted if an applicant is able to satisfy the statutory criteria as to the financial eligibility and the merits for taking, defending, opposing or continuing proceedings or being a party thereto, as stipulated in section 10(3)  of the Legal Aid Ordinance.

After consideration of all the relevant documents and information, we are of the view that you do not have reasonable grounds for taking proceedings.

We agree with the Court of First Instance and Court of Appeal that your intended application for judicial review has no realistic prospect of success.

In addition, there is no question of great general or public importance involved.  There is no basis to grant leave on the “otherwise” limb.  Thus, you have failed to meet the statutory threshold under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  for leave to appeal to the Court of Final Appeal to be granted.

In view of the above, we have refused your legal aid application.

12.  Together with that letter was a further document of the same date, essentially explaining again those reasons for refusing the grant of legal aid.  But that document also expressly drew the Applicant’s attention to the fact that he had a right to bring the refusal decision before a Committee chaired by the Registrar of the High Court.  The document also pointed out that if the Applicant wished to have a review, he would have to deliver to the Director of Legal Aid and the Chairman of the Committee his Notice of Review in writing accompanied by a certificate by Counsel practising in Hong Kong stating that he has a reasonable prospect of success in the appeal and the grounds for that opinion, and to do that within 28 days of 15 September 2023.

D.  No Merit in Present Application

13.  The Applicant’s present application stands to be dismissed as having no merit, for several reasons.

14.  First, neither the Form 86 nor the affirmation filed in support identify any intended grounds of review.  That is in breach of the mandatory requirements in Order 53 rule 3(2)(a)  of the Rules of the High Court.  The Applicant’s general statements in his affirmation (see above)  do not identify any alleged public law errors specifically made by the Director of Legal Aid in reaching and making the Decision.

15.  Secondly, as the Decision and the accompanying document make clear, if the Applicant is dissatisfied with the Decision he has an alternative remedy.  That is ordinarily a bar to an application for judicial review, as any alleged procedural unfairness or public law error is capable of being remedied through the alternative remedy available.

16.  Thirdly, in any event I do not see any reasonably arguable public law error in the making of the Decision.  In light of the Judgment of the Court of Appeal, it was plainly not irrational for the Director of Legal Aid to consider that the merits threshold for the grant of legal aid was not met, that there was no point of great general or public importance involved, and that there was no basis to grant leave on the “otherwise” limb.  There is no suggestion on the materials that the Director of Legal Aid fell into some other public law error.

E.  Result

17.  The Applicant has failed to identify and/or demonstrate any reasonably arguable ground of review with any reasonable prospect of success.

18.  Therefore, his application for leave to apply for judicial review is dismissed.  I make no order as to costs.