RE TRAN VAN NHANH

CAMP 188/2021

[2021] HKCA 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 188 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2584 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge C P Pang (“Judge”) on 23 March 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 13 October 2016 and 15 July 2019.  In those decisions, the Board upheld the decisions of the Director of Immigration (“Director”) dated 29 January 2016 and 3 March 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 17 May 2021, Deputy High Court Judge K W Lung refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 23 March 2021.

Background

3.  The applicant is a Vietnamese national.  He arrived in Hong Kong on 16 December 2013 and was permitted to remain as a visitor until 20 December 2013.  He did not depart, and overstayed.  He surrendered himself to the Immigration Department on 30 December 2013, and lodged his non‑refoulement claim on 8 April 2014.

4.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed by the police, because he accidentally swept the police badge off a police officer during an altercation after his wife was stopped for running a red traffic light.  The factual background was set out at [15] of the Board’s decision of 13 October 2016.

5.  By notices of decision dated 29 January 2016 and 3 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[2] persecution risk,[3] and torture risk;[4] the latter covered BOR 2 risk.[5]

6.  The applicant made separate appeals to the Board against each of the Director’s decisions.  The Board decided both appeals separately without an oral hearing, as there was no dispute as to facts or law which required an oral hearing to resolve.  The Board accepted the applicant’s factual account of the incident with the police in Vietnam.

7.  For the appeal against the Director’s decision dated 29 January 2016, the Board found that neither the applicant nor his wife had ever been assaulted or threatened by the police in Vietnam, that the police did not attend his home to arrest him, and that the offences that he and his wife might have committed were minor. Therefore, the Board found there was no real risk of harm in the event of refoulement.  The Board was also satisfied that state protection was available.  The Board dismissed the applicant’s appeal on 13 October 2016 in relation to all grounds other than BOR 2 risk.

8.  For the appeal against the Director’s decision dated 3 March 2017 in relation to BOR 2 risk, the Board relied on its factual findings in its decision of 13 October 2016, noting that the applicant had added nothing to the assertions he had previously made.  Thus the Board dismissed the appeal on 15 July 2019 in relation to BOR 2 risk.

The Judge’s decisions in the court below

9.  On 4 September 2019, the applicant sought leave from the Court of First Instance to apply for judicial review.  The respondents were stated to be the Director and the Board, and the date of the decision in question was stated to be 25 January 2016.  In his supporting affirmation, the applicant merely stated that he disagreed with the Board’s decision and that he could not return to Vietnam because his life would be in danger. 

10.  Following consideration of the documents only, on 23 March 2021 the Judge refused to grant leave to apply for judicial review.  The Judge treated the application as one directed against both of the Board’s decisions.  The reasons for the refusal were set out in [15]‑[20] of the Form CALL‑1 as follows:

“ 15. The relevant principles regarding non‑refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

16. When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decisions of the Director, it is unnecessary to delve into the decisions of the Director. This decision will only focus on discussing the Board’s decisions.

17. In the present case, the Board accepted the applicant’s account of primary facts and events relating to the alleged traffic incident and the summons issued to the applicant. It however disagreed with the applicant on the risk of harm he would face flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection.

18. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

19. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness. The assertion that he did not agree with the Board’s decision and the repetition that his life would be in danger cannot constitute a valid ground of review.

20. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.”

11.  On 14 April 2021, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, he deposed that he did not know English, did not have financial means to obtain legal advice on appeal procedure, and thought he had lost the right to appeal after the 14‑day time limit for appealing the Judge’s decision.  He claimed he had a good ground of appeal sufficient to constitute a good reason for extending time but he did not specify what ground it was.

12.  Deputy Judge K W Lung determined the application without an oral hearing and, in his decision dated 17 May 2021,[6] explained that he did not see any prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.  On 24 May 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 23 March 2021 refusing leave for judicial review.  In his supporting affirmation of the same date, he deposed that he did not have money to seek advice on procedure and could not approach the High Court’s Resource Centre for Unrepresented Litigants to find out how to appeal.  Again he claimed he understood there was a good ground of appeal that had not necessarily been considered below which would constitute a sufficient reason for extending time.  He did not, however, explain what ground it was.

14.  The applicant lodged written submissions for his application on 6 July 2021.  Besides reiterating the factual background and procedural history of his claim, those submissions consist almost entirely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.  Paragraph (5) of those submissions asserts that the Board acted in a procedurally unfair manner by failing to properly assess his credibility, but does not provide any details or particulars as to how the Board so failed, or as to any specific errors made by the Judge.

Legal principles

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

17.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision‑makers are the Director and the Board.  Assessment of evidence and country of origin information and risk of harm, state protection and viability of internal relocation are matters 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.  In the determination of an appeal, the Court of Appeal focuses on the decision of the Court of First Instance in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

18.  In the present case, the applicant’s intended appeal was late by 8 days.  The delay is not lengthy.  The crucial question is whether the intended appeal has any prospect of success.

19.  As mentioned above, in his submissions the applicant did not provide any particulars in support of his arguments or as to any specific errors in the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.  As there are no such grounds advanced that point to any error by the Judge, the appeal should be dismissed.

20.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection on the basis of its findings that neither the applicant nor his wife had ever been assaulted or threatened by the police in Vietnam, that the police did not attend his home to arrest him, and that the offences that he and his wife might have committed were minor.  As a result the Board found that there was no real risk of harm in the event of refoulement but the Board was in any event satisfied that state protection was available.  These findings are within the province of the Board and open to it on the materials available.  The court cannot interfere with such assessments unless they are vitiated on public law grounds.  There are simply no such valid grounds shown by the applicant.

21.  As for the applicant’s assertion that the Board failed to properly assess his credibility, this is clearly misconceived and irrelevant, as credibility was not in issue.

22.  Accordingly we are of the view that there is no reasonably arguable ground for judicial review of the Board’s decisions and that the Judge was right to refuse leave for judicial review. 

23.  For these reasons, we do not see any prospect of success at all in the intended appeal.  It would be futile to extend time only for a hopeless appeal to be brought.  The summons dated 24 May 2021 is dismissed accordingly.