RE NGUYEN VAN HONG

CAMP 202/2022

[2022] HKCA 1126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 202 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2859 OF 2018)

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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 5 August 2020[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 Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 37. He entered Hong Kong illegally and was arrested by the police on 2 December 2016. On 23 February 2017, he was repatriated to Vietnam. He later re-entered Hong Kong illegally and was arrested by the police on 22 June 2017. Subsequently, he raised a non-refoulement claim based on fear of being harmed or killed by his creditor and his followers due to his inability to repay his debt. The details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.

6.  By his decision dated 15 January 2020, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board. The Board held an oral hearing on 3 December 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 7 December 2018, the Board dismissed the appeal. The Board found the applicant not a credible witness and his case was inherently implausible, internally inconsistent and conflicted with the country of origin information. The Board did not accept he had borrowed money from loan shark, or had been threatened and assaulted by his creditor. The Board also considered that, even on his case, he did not meet the requirements for protection under any of the applicable grounds. The Board further held that the availability of internal relocation alternatives would further lower or negate the level of risk that the applicant may face. The Board concluded that the claim failed on all applicable grounds.

8.  On 13 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any specific grounds to support the application, other than stating that his creditor would not spare him because he was unable to pay his debt.

9.  The Judge considered the application on paper. By a Form CALL-1 dated 3 August 2020, he refused the application for the reasons set out in [9] to [13]. Principally, the Judge held that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the applicant’s intended judicial review has no 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 decision within 14 days after it was made. In the applicant’s case, the 14-day period expired on 14 September 2020.

11.  By a summons filed on 14 October 2020, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 28 October 2021[6] refused the application.

12.  On 17 June 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  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.

14.  The applicant was one month late, which is not an insubstantial delay. He explained the delay on the basis that he was not aware of the time limit for making the appeal, and 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 help him to make the application. While we accept that the applicant may have difficulty understanding English, we do not find the explanation entirely satisfactory given that one month 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.

15.  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.

16.  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 his country.

17.  The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given that 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.

18.  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.

(2) Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the applicant’s evidence not credible, that even on the applicant’s own case, it did not satisfy the requirements for granting non-refoulement protection, and that internal relocation alternatives were available. The applicant’s complaints against the Board’s decision are no more than general assertions with no particulars, and do not provide proper basis for the Court to grant relief. In the circumstances and in light of the Board’s rejection of his claim, the applicant’s assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.

(3) As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s decision has been superseded and is no longer susceptible to judicial review.

19.  We have separately considered the Board’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.

20.  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 17 June 2022.