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CAMP 247/2023, [2024] HKCA 326
On Appeal From [2023] HKCFI 443
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 247 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 740 OF 2019)
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| RE: |
TRAN CONG DU |
Applicant |
________________________
| Before: |
Hon Au and G Lam JJA in Court |
| Date of Judgment: |
19 April 2024 |
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J U D G M E N T
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Hon Au JA (giving the judgment of the court):
1. On 10 July 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 9 May 2023 ([2023] HKCFI 1079) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 7 March 2023 ([2023] HKCFI 443) (“the Leave Decision”) refusing 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 4 March 2019, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 5 July 2018 rejecting the applicant’s non-refoulement claim.
3. By a Request for Dismissal of Appeal lodged on 19 September 2023, the applicant requested for his appeal to be dismissed. By a letter dated 17 January 2024, the applicant stated that his problems in Vietnam were solved and it would be safe for him to return back to Vietnam.[1]
4. On the basis of his Request for Dismissal of Appeal, we will dismiss his summons dated 10 July 2023. In any event, for the reasons below, we considered that his application is without merit.
5. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
BACKGROUND
6. The applicant is a national of Vietnam. He entered Hong Kong illegally on 2 March 2016 and was intercepted at Lo Wu Control Point on 3 March 2016. On 10 April 2016, he lodged a non-refoulement claim on the basis of a loan dispute with his creditor Dung. Details of the applicant’s claim have been summarised by the Judge at [4] - [5] of the Leave Decision.
7. By a Notice of Decision dated 5 July 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds: risk of torture[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].
8. The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at [9] - [11] of the Leave Decision:
“9. The Board considered the country of origin information, particularly those related to loan sharks and illegal loan collecting activities [31]. It proceeded to consider the credibility of the applicant’s evidence. It noted that the applicant was inconsistent with the date of the loan, whether it was from 2007 or 2015; that he had not provided any documents for the loan; that his evidence about the interest of the loan was changing; that how much he had paid for the interest payment was inherently contradictory; and that the deadline for repaying the loan was also different [39]-[44]. The applicant also provided different accounts in relation to Dung’s loan collecting conducts [46]-[47]. All these discrepancies were not satisfactory explained by the applicant.
10. Meanwhile, the loan dispute was a private one without state involvement [56] and the injuries of the applicant or his wife, if any, failed to attain a minimum level of severity [60]. Coupled with the finding of availability of state protection [64]-[65], the Board found the applicant’s claim was unsubstantiated.
11. For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.”
9. On 18 March 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In his supporting affirmation, he only stated that, if refouled, his creditor would harm or kill him for his failure to repay his loan.
THE JUDGE’S DECISION
10. On 7 March 2023, as the applicant did not request for an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review. His reasons were stated at [14] - [19] of the Leave Decision:
“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. 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.’
17. The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason from the applicant to challenge the Board’s Decision.
18. 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.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
11. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.
12. On 18 April 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision. By that time, he was over three weeks late with his intended appeal.
13. On 9 May 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.
THIS APPLICATION
14. By a summons, a supporting affirmation and a written statement all filed on 10 July 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision. In his summons, the applicant did not give any reason for his delay or any ground of review. In his supporting affirmation, the applicant alleged that court’s decisions had been unfairly reached without allowing him the opportunity to clarify his case and situation in his home country.
15. In his written statement, the applicant repeated the factual basis and procedural history of his non-refoulement claim. He alleged that his problems in his home country still persisted and that it was unfeasible for him to relocate internally in Vietnam. He also alleged that the situation of corruption between gangsters and the police in Vietnam made it very dangerous for him to escape to another place in Vietnam. He further stated that the Immigration Department failed to consider various legal provisions but did not elaborate or point to any specific particulars.
16. As mentioned above, thereafter, the applicant lodged his Request for Dismissal of Appeal, alleging that his problems in Vietnam were solved and it would be safe for him to return.
DISCUSSION
17. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.
18. 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.
19. 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].
20. 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)]).
21. 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.
22. The applicant’s delay of over three weeks is substantial and inordinate. He did not provide any reason, let alone good reason for his delay.
23. More importantly, his complaints are general allegations without particulars. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. As the applicant did not request for an oral hearing, it was open for the Judge to consider his application on paper after considering the materials advanced by him. In any event, the applicant already had ample opportunities to present his case and situation before the Judge. There is plainly no substance in his complaints.
24. The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.
25. 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 Leave Decision.
DISPOSITION
26. The application for extension of time to appeal is refused, and the applicant’s summons taken out on 10 July 2023 is dismissed.
| (Thomas Au) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This letter was forwarded to this court under the cover of the Director’s letter dated 19 January 2024.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] 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.
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