RE TRAN DUC NGOC

CAMP 405/2021

[2022] HKCA 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 405 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1252 OF 2018)

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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 8 March 2021, DHCJ K.W. Lung (“the Judge”)  refused to grant extension of time to the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“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.  On 21 May 2021, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 6 August 2021. 

3.  On 24 September 2021, the applicant filed a summons in CAMP 405/2021 (“the Summons”)  in the Court of Appeal applying to this court for extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 September 2021, the applicant should lodge his written submissions on or before 8 October 2021.  He failed to do so.  It was further directed that in the event the applicant failed to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available 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 23 April 2015 and was arrested by police on 25 April 2015.  He lodged his non-refoulement claim with the Immigration Department by way of written representation on 29 May, 1 August and 25 November 2015 alleging that if refouled, he would be harmed or even killed by his creditor because he was unable to repay his loans and the creditor was a triad gang member who was related to the police.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 530).

7.  By a Notice of Decision dated 17 July 2017, the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  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 applicant attended an oral hearing on 23 October 2017 and by its decision dated 3 November 2017, the Board rejected the appeal/petition on all applicable grounds and confirmed the Director’s decision.  For the reasons set out in [24] to [27], the Board found that the applicant’s evidence was inconsistent and implausible, and rejected his case on the issue of credibility.  Even on the applicant’s own evidence, it was his case that he had worked in an orchard in Song-ma, Sonla for 3 years after he escaped from his home town to avoid the creditor [7] and he had not been located by the creditor.  This evidence suggested that the creditor did not have the ability and resources to track him down all over Vietnam.  Country of origin information suggested that the Vietnamese government has taken steps to combat corruption and unlawful debt recovery, and had also improved the efficiency of the police force.  Thus, there is reasonable state protection upon his return to Vietnam [30] – [31].  Internal relocation to places like Sonla where he worked and lived for 3 years is a reasonable and viable option to avoid the creditor [34] – [35].  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 3 July 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s intended application for judicial review was made out of time.

10.  In his supporting affirmation, he did not explain his delay and did not provide any ground for relief.  He just stated the following:

“I am afraid that the creditor and his subordinates could have inflicted more serious harm had they intended to do just for one reason that I can’t pay back the debt.”

11.  The applicant only exhibited the Board’s decision in his supporting affirmation.  As the Director’s decision is not amenable to judicial review once the applicant had filed his appeal to the Board, the Judge focused only on the Board’s decision in considering his application.

The JR Decision

12.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Director’s and the Board’s decisions, the Judge refused to extend time and dismissed the application for leave to apply for judicial review for reasons set out in [12] - [18] of the JR Decision:

“12.  As mentioned in paragraph 1, this is a late application. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14 July 2020, Fok PJ held:

‘39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.’

I shall now consider the merit of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

14.  (Paragraph 13 repeated).

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… … 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.’

16.  His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 21 May 2021 for an extension of time to appeal.  That was dismissed by the Judge on 6 August 2021.  Hence, the Summons to this court.

Discussion

14.  In considering whether to extend time for appealing, 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). 

15.  As for (1), the applicant was late by more than 8 weeks 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.

16.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation filed on 21 May 2021 that he had changed his address and he did not know that he had to inform the court of the change.  He therefore did not receive the Court’s decision. 

17.  It is the duty of a litigant to provide the Court with an up-dated address so that relevant notification can be given to him effectively and in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [31].  We do not see any good for the applicant’s substantial delay.

18.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds for his intended appeal and only stated in his supporting affirmation filed on 21 May 2021 that he believed that there is merit in his appeal that should constitute sufficient reason for the Court to allow his application.

19.  In the Summons and supporting affirmation filed in this Court, the applicant failed to provide any ground of appeal against the JR Decision save for repeating his complaint in his affirmation filed on 21 May 2021.

20.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility and in any event, the Board found that the applicant should be able to safely relocate to other parts of Vietnam like Sonla as he had lived and work there for 3 years before he left Vietnam for Hong Kong, and there is no evidence to suggest there is any risk of harm upon his return.  It is perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

21.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

22.  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 24 September 2021.