TRAN HUY PHUONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 195/2023, [2023] HKCA 1219

On appeal from [2022] HKCFI 3449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 964 OF 2022)

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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 11 November 2022, Deputy High Court Judge Bruno Chan refused to extend time to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 9 December 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 11 May 2023[2].

3.  On 23 May 2023, the applicant filed the present summons with the Court of Appeal seeking leave to appeal against the order dated 11 May 2023. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for extension of time to appeal against the judge's decision of 11 November 2022.

4.  The applicant is a national of Vietnam. He alleged that he entered Hong Kong illegally on 15 July 2021 via Mainland China and was subsequently arrested by the police on 29 August 2021. He raised a non-refoulement claim on 24 September 2021 on the basis that he would be harmed or killed by a motorcycle gang in Vietnam and the triad associated with them, due to a dispute over the damage to their motorcycles in a parking lot where the applicant worked as a security guard.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 1 December 2021, 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 14 December 2021, the applicant appealed against the Director’s decision to the Board. The Board later received a letter dated 5 January 2020 from the applicant on 11 January 2022 requesting to withdraw his appeal. The Board accepted the applicant’s withdrawal request on the same date and informed him that no further action would be taken by the Board as his non-refoulement claim had been finally determined.

The intended judicial review

6.  On 19 September 2022, some nine months after the Board’s acceptance of his withdrawal request, the applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review against the decision of the Board (by then a delay of more than five months had incurred).

The judge’s decision

7.  The judge dealt with the application on paper as the applicant did not request for an oral hearing. The applicant only stated in his affirmation that he does not agree with the Board’s decision because his life would be in danger if he is refouled back to his country. There was no ground for seeking relief in the Form 86 or in the affirmation. In particular, there was no evidence produced explaining why the applicant was challenging the Board’s decision notwithstanding his own decision to withdraw his appeal.

8.  In relation to the delay, there was again no explanation put forward by the applicant. The judge therefore held there was no good or valid reason to justify the delay. As to the merits of his claim, the judge noted that the applicant had failed to provide any ground for the intended judicial review. Thus, the judge held there was no error of law or irrationality or procedural unfairness on the part of the Board. The judge further considered the fact that the Board had allowed the applicant’s request to withdraw and there was no evidence that such withdrawal by the applicant was invalidly made. Therefore, the judge held that the Board by then had become functus officio and there was no jurisdiction to determine the appeal as the decision of the Director was final upon the applicant’s valid withdrawal.

9.  In the circumstances, the judge found there is no reasonable prospect of success in the intended application for judicial review and refused to extend time and dismissed the leave application on 11 November 2022.

Grounds of intended appeal

10.  The applicant raised the following grounds in his affirmation of 23 May 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; and

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

11.  These further contentions were made in the applicant’s written statement dated 23 May 2023[7]:

(1)  If he returns to Vietnam, his life will be in danger because the motorcycle gang in Vietnam are too angry and unable to control their emotions and behaviour due to the alleged damaged motorcycles incident;

(2)  The Director’s suggestion that the applicant can move to another location is completely unfeasible as his health condition is not good, and there is no guarantee he can adapt to a new location and sufficiently support himself;

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

Analysis and disposition

12.  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.

13.  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 11 November 2022. The applicant was late by two weeks when he took out a summons for extension of time to appeal at the court below on 9 December 2022. He explained at the hearing before the judge on 27 April 2023 that the delay was due to his moving to his present address in Sham Shui Po upon his release from the Castle Peak Bay Immigration Centre, and he had failed to inform the court of his new address. He only received the decision of the judge in early December 2022 when the same was re-sent by the court.

14.  We agree with the judge’s view at §5 of his decision dated 11 May 2023 that the applicant had only himself to blame for the delay. It was the duty of the applicant to inform the court as soon as practicable of his new address. As the Court of Appeal has repeatedly stated, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

15.  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 reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

16.  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.

17.  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.

18.  The applicant’s grounds in his Summons are not reasonably arguable. The judge was entitled to consider his application on paper pursuant to Order 53 rule 3(3) of the Rules of the High Court as he did not request an oral hearing in his Form 86. As for the contentions raised in his written submissions, they are bare assertions without any evidence or particulars in support. More importantly, 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 challenge the holding that his withdrawal request to the Board was valid.

19.  In the circumstances, 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 11 November 2022 and dismiss the summons filed on 23 May 2023.