RE PHAM VAN NHAM

CAMP 177/2022

[2022] HKCA 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 177 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1050 OF 2021)

__________________________

__________________________

________________

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 10 September 2021[1] refusing to give him leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written statement to support his application.  He has not lodged any written submission despite the directions of the Registrar of Civil Appeals.  

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 papers filed in the application and the applicant’s 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 Director of Immigration (“the Director”) refusing to allow him to make a subsequent claim for non-refoulement protection after his earlier claim had been rejected under the Unified Screening Mechanism on all applicable grounds.

5.  The applicant is a national of Vietnam aged 30.  On 19 September 2014, the applicant surrendered to the Immigration Department, claiming to have entered Hong Kong illegally, and raised a second non-refoulement claim based on his fear of being harmed or killed by his creditor, Duoc, and his followers due to his inability to repay his debt.  By his decision dated 9 May 2017, the Director rejected the claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.  The applicant did not appeal against the decision, and was repatriated to Vietnam on 26 January 2018. 

6.  On 16 June 2021, the applicant was arrested by the police, having again came to Hong Kong illegally.  On 29 June 2021, he raised a non-refoulement claim based on fear of being harmed by another creditor, Bui Van Tuan (“Bui”).  The applicant claimed that after his repatriation, he had borrowed to borrow from Bui in order to repay Duoc, but due to failure in his business he has not been able to make repayment to Bui. The details of the applicant’s claim were set out in the decision of the Director at [10].  We will not repeat them.     

7.  By his decision dated 19 July 2021, the Director refused to allow the applicant to make a subsequent claim because he was not satisfied that (a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

8.  The applicant sought to appeal the Director’s decision to the Torture Claims Appeal Board (“the Board”).  By a letter dated 28 July 2021, the Board informed the applicant the Board has no power to deal with the appeal as the Director’s decision was made pursuant to section 37ZO(5) of the Immigration Ordinance, which is not a decision that may be appealed to the Board under section 37ZR of the Immigration Ordinance. 

9.  On 26 July 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decisions of the Director and the Board.  He did not provide any ground to support the application, other than stating in the affirmation that his life would be in danger if he were to return to Vietnam.

10.  The Judge considered the application on paper.  By a Form CALL-1 dated 10 September 2021, he refused the application for the reasons set out in [13] and [14] as follows:

“13. … having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for a subsequent claim, and given the Director’s correct finding that the risk of harm in his claim in both decisions 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: TK v Jenkins & Anor [2013] 1 HKC 526. As such and for these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

14. In the circumstances, and as his non-refoulement claim has already been rejected by the Director on the previous occasion, I am mindful of the fact that the Applicant appears to be trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, but given the fact that for whatever reason he never brought any appeal or petition to the Board as part of his entitlement to a 2-tiers screening process under the Unified Screening Mechanism (“USM”) for his non-refoulement claim, and that it was also open to him under Section 37ZO of the Ordinance to make a subsequent claim provided certain conditions as noted above are complied with, and while he failed to do so in his present application, given the nature of such proceedings, I am unable to find with certainty that he has been guilty of abusing the process, and therefore refrain at this stage from considering whether it would be appropriate to make a Restricted Proceedings Order against the Applicant.”

11.  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.  The 14-day period for the applicant to lodge an appeal expired on 24 September 2021 when the High Court registry re-opened.    

12.  By a summons filed on 28 October 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing on 4 May 2022.  By his decision handed down on 19 May 2022[6], the Judge refused the application. 

13.  On 31 May 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

14.  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. 

15.  The applicant was more than one month late.  He explained the delay on the basis that the Judge’s order was written in English which he did not understand and he needed to wait till his friend had time to explain it to him and to help him with making the application.  While we accept that the applicant may have difficulty understanding English or is unfamiliar with the court process, we do not find the explanation entirely satisfactory given that one month weeks is a significant delay and a litigant is under a duty to act expeditiously. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

16.  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.

17.  The summons did not contain any ground for the application.  The affirmation complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in Vietnam.      

18.  The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given 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 creditor and the gangsters can find him no matter where he goes.  The applicant further complained that the Director did not consider his human rights.  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. 

19.  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 are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  As the Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing.  We note further that despite being invited by the Judge at oral hearing to hear his application for extension of time, the applicant failed to put forward any arguable ground to challenge the Director’s decision (see [6] of the Judge’s decision dated 19 May 2022). 

(2)  The applicant’s arguments do not engage the decision of the Director and the reasons for it.  Most of his arguments are irrelevant and misplaced.         

20.  We have separately considered the Director’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.           

21.  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 May 2022. 

[1] [2021] HKCFI 2733

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] 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.

[4] 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.

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

[6] [2022] HKCFI 1348