VU VAN MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 20/2023, [2023] HKCA 745

On appeal from [2022] HKCFI 3172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 20 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2514 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 13 October 2022, Deputy High Court Judge K W Lung refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim[1].

2.  On 7 November 2022, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 15 December 2022[2].

3.  On 16 January 2023, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the order dated 15 December 2022 and for leave to advance a new ground of appeal. This summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 13 October 2022 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Vietnam. He alleged that he entered Hong Kong illegally on 24 April 2015. He surrendered to the Immigration Department on 27 April 2015 and raised a non-refoulement claim on the same day. His claim was made on the basis that he will be harmed or killed by his creditor if he returns to Vietnam because he fails to repay the debt.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 25 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6]. On 8 November 2016, the applicant appealed against the Director’s decision to the Board.

6.  The applicant attended the hearing before the Board on 14 June 2018[7]. The Board found that the applicant’s claims are not credible because of the vagueness and significant inconsistencies in his evidence. The Board further considered that even if his evidence were accepted, there would not be sufficient basis to show there is real or foreseeable risk of harm as the applicant had not been tortured and the creditor had not visited the applicant any more after he sold his house to repay the debt. In addition, the Board assessed that reasonable state protection will be available to the applicant in Vietnam and he can relocate to other places in his country to reduce the feared risk of harm. Therefore, the Board dismissed the appeal on 2 November 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 8 November 2018 for leave to apply for judicial review against the decision of the Board.

The judge’s decision

8.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The applicant only stated in his affirmation that his life would be in danger if he is refouled back to his country because he is unable to repay his debt, without stating any specific grounds against the Board’s decision. The judge considered that the applicant does not have any reasonably arguable basis to challenge the Board’s decision. The judge also found there is no error of law or procedural unfairness. The judge therefore held there is no reasonable prospect of success in the intended application for judicial review and dismissed the leave application on 13 October 2022.

Grounds of intended appeal

9.  The applicant stated the following grounds in his affirmation of 16 January 2023:

(1)  The decision of the court was reached unfairly without allowing the applicant the opportunity to clarify his case and the situation in his country;

(2)  The merits of that ground of appeal constitute sufficient justification for the court to exercise its discretion in allowing this appeal out of time.

10.  The applicant’s further contentions in his written statement dated 16 January 2023[8] may be summarised as follows:

(1)  If he returns to Vietnam, his life will be in danger because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people;

(2)  The Director’s suggestion that the applicant can move to another location is completely unfeasible;

(3)  The Director did not consider the applicant’s human rights under the Basic Law, “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

11.  In considering whether to extend time to appeal against a decision refusing 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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 13 October 2022. The applicant was late by 11 days when he took out a summons for extension of time to appeal at the court below on 7 November 2022. He explained that the deadline for appeal has already passed when he received the letter from the court and he could only file the appeal when his friends have free time to help as he cannot speak English or Chinese[9].

13.  The applicant did not state when he actually received the court’s decision and did not provide any proof of postal delay. Even if the court is minded to accept the applicant’s explanation for the delay under the particular circumstances of this case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[10].

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  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. 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 applicant’s grounds are not reasonably arguable. As he did not request an oral hearing in his Form 86, the judge was entitled to consider his application on paper pursuant to Order 53 Rule 3(3) of the Rules of the High Court.

17.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. He also failed to adduce any evidence to refute the Board’s findings against his credibility. We agree with the judge there is no prospect of success in his intended appeal. We therefore refuse to grant extension of time to appeal against the judge’s decision of 13 October 2022 and dismiss the summons filed on 16 January 2023.