RE HOANG VAN TIEN

CAMP 515/2022, [2023] HKCA 1160

On Appeal From [2022] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 515 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1118 OF 2019)

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J U D G M E N T

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

1.  On 23 June 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 3 October 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 28 October 2022.

3.  On 5 December 2022, the applicant filed a summons in English in CAMP 515/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision of 28 October 2022. This summons is to be treated as a renewed application for leave to appeal out of time against the JR decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 5 December 2022, the applicant should lodge his written submissions in support of the Summons on or before 19 December 2022. However, he failed to do so. The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 1 January 2015. He was arrested by the police on 3 February 2015. On 24 February 2015, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by his creditor over his outstanding debts. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 1903).

7.  By a Notice of Decision dated 11 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk.[4]

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board disposed of the applicant’s appeal on paper. By its decision dated 11 April 2019, the Board dismissed the applicant’s the appeal. For the reasons set out at [48] – [66], the Board found that there was no reliable evidence of any real intention of the creditor to seriously harm the applicant other than to put pressure on him to repay his debts. Taking into account all the relevant circumstances of the applicant’s claim, the Board did not find there would be any real risk of harm or ill-treatment upon the applicant’s return to Vietnam. In any event, it was a private monetary dispute between the applicant and his creditor without any official involvement. Objective country of origin information (“COI”) suggested that there is reasonable state protection and internal relocation is a viable option to avoid his creditor. For the aforesaid reasons, the applicant’s non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 26 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. He did not advance any valid grounds for relief in his Form and supporting affirmation save for repeating the factual allegations of his claim and saying that he came to Hong Kong to seek protection.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [12] - [17] of the JR Decision:

“12. 本席職責主要監督上訴委員會在作出裁決的過程之中有否遵守有關法律規定，公平公正地作出決定。至於證據和事實的評估和決定權是屬於處長和上訴委員的職責範圍，本席不應該無故干涉。有關法律規定可見於上訴法庭案例TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526§40 和 Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. 本席明白，對於上訴委員會的決定，本席應該採取最嚴謹和苛刻的審查。

14. 根據上訴法庭在Re: Kartini [2019] HKCA 1022的案件中指出，有關證據的評估，包括：原居國資料、傷害風險、國家保護、國内遷徙的事實，都是處長和上訴委員的權力範圍，法庭不應該在司法覆核的程序中加以干涉，除非該決定是出於法律誤判、程序不公或是有違常理的情形之下而作出。以下是原文：

‘13 (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. 申請人未能提出合理理由反對處長和上訴委員對事實的判決。

16. 本席認爲上訴委員的決定沒有法律誤判、程序不公或是有違常理。

17. 因此，本席認爲沒有任何證據顯示，申請人建議對上訴委員會的決定作出司法覆核，有任何合理的成功機會。”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons with supporting affirmation in the Court of First Instance on 3 October 2022 for an extension of time to appeal. That was dismissed by the Judge on 28 October 2022. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by almost 3 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he could not file his appeal in time as he lost his Recognizance Form 8 which is his identification document in Hong Kong and thus he could not make his application in time. The applicant did not provide any documentary proof to support his assertion and we do not accept the applicant’s bare assertion as good reason for his substantial delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation.

16.  In the Summons and supporting affirmation filed with this Court, the applicant did not advance any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision save for saying that the JR Decision was unfair and he was not allowed an opportunity to clarify his case and situation of his home country.

17.  In a statement attached to the Summons, he stated that he would face risk of harm from his creditor upon refoulement but the Director and Board rejected his non-refoulement claim. He disagreed that internal relocation is a feasible option as he claimed gangsters would find him and he would suffer disadvantage in a new location in Vietnam. He further complained that the Director had disregarded his human rights and he requested the Court of Appeal to grant his application.

18.  Regarding the complaint that he was not allowed an opportunity to clarify his case, it is noted that the applicant did not request an oral hearing for his application for leave to apply for judicial review. In any event, the role of the Court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and COI materials, risk of harm, and viability of internal relocation are primarily within the province of the Board. The Court will not intervene unless there are errors of law or procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  It is clear from the Board’s decision that there was no reliable evidence of any real intention of the creditor to seriously harm the applicant other than to put pressure on him to repay his debts. It was not believed that the applicant would face any real risk of harm or ill-treatment upon his return to Vietnam. In any event, it was a private monetary dispute without any official involvement, and objective COI suggested that there is reasonable state protection, and internal relocation is a viable option to avoid his creditor. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

20.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 5 December 2022.