PHAM TIEN DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 545/2022

[2023] HKCA 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 545 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1503 OF 2021)

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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 extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 5 January 2022[1] refusing to extend time for the applicant to apply for, and refusing to grant, leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 June 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 20 April 2017 rejecting his non-refoulement claim.

2.  On 16 August 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a national of Vietnam born in 1992.  He claims to have entered Hong Kong illegally on 29 April 2015.  He surrendered himself to the Immigration Department on 5 May 2015 and raised a non-refoulement claim by written representation on the same day.  His claim is based on the fear that if he returns to Vietnam, his creditor, a man called Dung, will torture him or even kill him.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By a notice of decision dated 20 April 2017, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was scheduled by the Board on 6 December 2018, but the applicant failed to attend it.  The Board duly gave notice to the applicant informing him of the Board’s intention to determine the appeal in his absence.  He was asked to submit to the Board a written explanation of his failure to attend the hearing, together with documents in support, but he did not respond.  Accordingly, the Board proceeded to determine the appeal on the basis of the documents. In its decision dated 20 June 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge in his decision as follows:

 

“ 9.  Bearing these in mind, the Board considered all the available evidence.  It found that the applicant’s claim was exaggerated, fabricated and contained discrepancies and inconsistences.  For example, the applicant’s claim that he could borrow the sum from the money lender was inconsistent with his earning and repaying capacity as documented in the country of origin information [91]-[96].  He was also never admitted to hospital for the ill-treatments or received any medical treatments from doctors or nurses.  His alleged injuries failed to attain the minimum level of severity [97].  Further, there was no state involvement as the applicant could apply for passport without difficulty [98].  Besides, it was the applicant’s own evidence that the money lender did not ask for repayment for more than a year [102].  Thus, even adopting the most generous interpretation, the Board still found the applicant a untruthful witness [103]-[107].

10.  In any event, the applicant’s dispute with the money lender was private in nature without any state involvement and internal relocation was available to the applicant [108]-[113]; [138]-[149]; [157].  Thus, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal.”

The Judge’s decisions in the court below

6.  On 29 October 2021, 25 months after the 3-month time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) for judicial review, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant simply said that he did not agree with the decision of the Board and that he could not return to his country.

7.  The Judge, having considered the application on the basis of the documents alone, issued his decision on 5 January 2022, refusing to extend time or to grant leave to apply for judicial review.  The reasons were set out at [13] – [18] of the Form CALL‑1 as follows:

“ 13. As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of more than 2 years is, of course, serious. However, I shall first consider the merits of the applicant’s case.

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

‘ 13. (1).… …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. There is no valid ground to challenge the Board’s Decision.

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 is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

8.  Again, the applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but only took out a summons on 19 July 2022 to seek an extension of time to appeal against the decision of the Judge.  In the affirmation in support he stated that he did not receive any letter from the High Court and did not know that his application had been refused until he was informed of it by an immigration officer.

9.  The Judge dealt with the application for extension of time on paper.  In his decision dated 16 August 2022, the Judge noted that according to the court’s records, his earlier decision had been sent to the applicant’s last known address on 5 January 2022.  In the end, the judge refused to extend time as the applicant had not shown any reasonable prospect of success in his intended appeal.

The renewed application before this Court

10.  With another lengthy delay, over four months later, by summons filed on 21 December 2022, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the accompanying affirmation, the applicant stated that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.  In a “statement” filed on the same date, the applicant claimed that if he returns to Vietnam, his life will be seriously threatened because creditors and gangsters in Vietnam are cruel and violent and willing to kill people to satisfy their anger and ferocity.  He said that it is not feasible for him to relocate within Vietnam, as his health is not good, he is not an active person, and there is no guarantee he will be able to adapt to the new place and find a job.  He said that with the nationwide network of gangsters and clandestine connections with corrupt people in the government, it is quite possible for the creditor to find out his new residence.  He said that the Immigration Department of Hong Kong had not considered his human rights.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 21 December 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The delay of half a year in this case is very substantial.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

13.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, due to the applicant’s own failure to attend the scheduled hearing and to provide an explanation subsequently, the Board proceeded to determine his appeal on paper.  The Board eventually came to the conclusion that the applicant’s allegations should be rejected.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

14.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.