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CAMP 453/2022
[2023] HKCA 312
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 453 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 124 OF 2019)
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BETWEEN
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NGUYEN THANH HA |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
21 March 2023 |
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. On 1 November 2022, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 6 July 2022 refusing to grant an extension of time to the Applicant to appeal against the Judge’s earlier order dated 7 July 2021 (“the Order”) refusing to grant him leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 July 2017 rejecting the Applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicant is a national of Vietnam. He came to Hong Kong on 29 May 2014, and overstayed after the expiry of his limit of stay on 5 June 2014. On 20 December 2014, he lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by a loan shark for failing to repay a debt owed by him.
5. By a Notice of Decision dated 26 July 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 25 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board accepted that the Applicant’s fear of being subjected to ill-treatment was real, but found against him because he could seek effective police protection in Vietnam, and also because there were reasonable relocation options available to him.
7. On 14 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for relief was given in the Form 86. In his supporting affirmation of the same date, he merely repeated the factual basis of his non-refoulement claim.
8. By an affirmation dated 3 June 2021, the Applicant applied to the court to “cancel” his application on the ground that it was safe for him to go back to Vietnam and he wanted to do so as soon as possible.
THE JUDGE’S DECISION
9. On 7 July 2021, the Judge dismissed the Applicant’s application for leave to apply for judicial review on the ground that he clearly had no intention of proceeding with his application ([2021] HKCFI 1713).
10. On 7 June 2022, the Applicant applied to the court below for an extension of time to appeal against the Order. In his affirmation filed in support of the application, he merely repeated his reasons for coming to Hong Kong.
11. On 6 July 2022, the Judge refused the Applicant’s application for extension of time to appeal on the ground that he had given no reason to contend that the court made any error in the decision to dismiss his application for leave to apply for judicial review, and there was no realistic prospect of success in the Applicant’s intended appeal ([2022] HKCFI 1926).
THIS APPLICATION
12. By a summons taken out on 1 November 2022, the Applicant applied to the Court of Appeal for leave to appeal against the Judge’s order of 6 July 2022. In his supporting affirmation of the same date, he again merely repeated his reasons for coming to Hong Kong.
13. The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 1 November 2022.
DISCUSSION
14. Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.
15. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
16. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
17. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
18. Further, the 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
19. The Applicant has given no explanation for his earlier application to withdraw his application for leave to apply for judicial review, and why he has changed his mind. He has also failed to point to or show any error in the Judge’s decision of 7 July 2021, or raise any viable ground of appeal against the Order.
20. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
21. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 1 November 2022 is dismissed.
22. This judgment is written in English because the judgments below were both written in English. If required, the Applicant may make an appointment with the clerk to this Court for the judgment to be orally interpreted to him in the language of his choice in the court’s premises.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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