DINH TRUNG THAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 259/2023, [2024] HKCA 990

On appeal from [2023] HKCFI 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 759 OF 2019)

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 27 January 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 23 June 2023, the applicant filed a summons to seek to appeal against that decision out of time at the Court of First Instance. The summons was dismissed by the judge on 10 July 2023[2].

3.  On 21 July 2023, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time.

4.  The applicant is a national of Vietnam. He alleged that he sneaked into Hong Kong from the Mainland on 18 January 2018. He was arrested by the police on 15 February 2018. He lodged a non-refoulement claim on 10 April 2018 on the basis that he will be harmed or killed by his creditor and his associates if he returns to Vietnam, and he also fears that he will be arrested because he is wanted by the Vietnamese police.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 September 2018, 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].

6.  The applicant appealed against the Director’s decision to the Board. After considering the materials and the nature of the arguments of the appeal, the Board decided to deal with the appeal on paper as it considered that the appeal can be disposed of fairly without an oral hearing. Based on the applicant’s statement, the Board considered that the past ill-treatments had not attained the prescribed minimum level of severity for non-refoulement protection. The Board also found that the creditor did not have real intention to seriously harm or kill the applicant as he did not do so even when he had the chance. Moreover, the applicant’s problem is a private dispute and there is nothing to show there is any involvement of the Vietnamese government or officials. The Board found the applicant was wanted by the Vietnamese police for violation of the law and there is no evidence to show that the Vietnamese police or government would persecute the applicant or that he would not have a fair trial should he be prosecuted in Vietnam. The Board further assessed there is no evidence to show that reasonable state protection and internal relocation alternatives are not available to the applicant in Vietnam. The Board decided that the applicant’s claim failed on all applicable grounds and dismissed the appeal on 14 March 2019.

The intended judicial review

7.  On 19 March 2019, the applicant filed a Form 86 and an affirmation in HCAL 759/2019 to seek leave to bring judicial review against the Board’s decision. He only reiterated the problems he faced in Vietnam without putting forward any grounds for his intended challenge against the Board’s decision.

The judge’s decision

8.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant only stated his own opinion in his supporting affirmation without providing any reasonable grounds against the Board’s decision. The judge also considered there is no error of law or irrationality or procedural unfairness in the Board’s decision. As there is no reasonable prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 27 January 2023.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in his written statement and affirmation which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;

(2)  It was unsatisfactory for the court to rule that the applicant has no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(5)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(6)  As he is wanted by the Vietnamese police for disturbing public order, he is worried that he would be brutally tortured by the Vietnamese police if he is caught by them;

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

Analysis and disposition

10.  In considering whether to extend time for appealing 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.

11.  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 27 January 2023 and the applicant was late by more than 4 months when he took out the summons at the court below on 23 June 2023. The delay is substantial and the applicant did not provide any explanation for the delay.

12.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  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.

14.  As the applicant did not request for an oral hearing in his Form 86, the judge was entitled to consider his application on paper without a hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court. The applicant had also filed affirmation to set out his grounds. There is nothing to show that the judge’s decision was made unfairly.

15.  In his supporting affirmation, the applicant exhibited some documents in Vietnamese which purportedly showed he is wanted by the Vietnamese police, without first seeking leave to adduce further evidence and without explaining why he did not adduce such evidence in the court below in the previous applications. In fact, neither the Director nor the Board had rejected the applicant’s assertion that he has been wanted by the Vietnamese police. It was found that the applicant was wanted by the police for violation of the law. However, there is no evidence to show that he would be brutally tortured by the police as alleged or that he would not have a fair trial in Vietnam.

16.  The grounds put forward by the applicant in the present application failed to show the judge was wrong in holding that there is no error of law or irrationality or procedural unfairness in the Board’s decision. We are not satisfied there is any prospect of success in the intended appeal.

17.  As there is no or no real prospect of success on the merits, we refuse to grant leave to appeal out of time. We dismiss the summons filed on 21 July 2023.