RE BUI VAN DAI

CACV 266/2021

[2022] HKCA 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 266 OF 2021

(ON APPEAL FROM HCAL 2669 OF 2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  Before this court are (i) the applicant’s Notice of Motion filed out of time on 5 November 2021 (“the Notice of Motion”) seeking leave to appeal to the Court of Final Appeal against the dismissal of his appeal on 6 October 2021 by reason of his non-compliance with an unless order dated 7 September 2021 (“the Unless Order”) and (ii) a summons filed on 19 November 2021 (“the Summons”) seeking relief from sanction imposed for the non-compliance.

Background

2.  By a decision dated 13 May 2021 (see [2021] HKCFI 1285), Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board, which dismissed his appeal against the decision of the Director of Immigration dismissing his non-refoulement claim.

3.  The applicant on 20 May 2021 lodged a Notice of Appeal seeking to appeal the Judge’s decision.  As the Notice of Appeal did not contain any proper proposed grounds of appeal, the Registrar of Civil Appeals directed on 14 July 2021 that the applicant shall lodge with the court a Supplemental Notice of Appeal with two sets of appeal bundle on or before 28 July 2021 (“the Registrar’s Directions”).

4.  As the applicant failed to comply with the Registrar’s Directions, this court (Barma JA) made the Unless Order on 7 September 2021, ordering that unless the applicant lodges with the court a Supplemental Notice of Appeal with two sets of appeal bundle by no later than 4 p.m. on 5 October 2021, the appeal shall stand dismissed.

5.  The applicant failed to comply with the Unless Order, and the appeal was accordingly dismissed by an order dated 6 October 2021.

6.  Pursuant to the directions made by the Registrar of Civil Appeals on 7 December 2021 in respect of the Summons, the applicant has on 16 December 2021 lodged two sets of application bundle with the court.

The present applications

7.  The Registrar of Civil Appeals directed on 9 November 2021 that this court will consider the Summons together with the Notice of Motion.  Having considered the applicant’s Notice of Motion and Summons as well as the supporting affirmations and his written submissions, we consider it appropriate to determine the present applications on the papers.  We have, therefore, determined the applicant’s applications on the basis of the documents filed.

(i) The Summons

8.  Order 2 rule 4 of the Rules of the High Court (Cap 4A) (“the RHC”) provides:

“Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”

9.  Since the Summons was filed more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect.

10.  Under Order 2 rule 5(1) of the RHC, in determining an application for relief from sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, inter alia, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

11.  In the present case, the Unless Order required the applicant to comply with the court’s directions by no later than 5 October 2021.  The applicant thereafter had 14 days to apply for relief from sanction, the expiry of which fell on 19 October 2021.  The Summons however was not filed by the applicant until 19 November 2021.  We consider the delay in applying for relief from sanction to be substantial.

12.  In the affirmation filed on 19 November 2021 in support of the Summons, the applicant deposed:

“I am certain that I have never received any letter from the Court asking me to lodge with the court a supplemental notice of appeal and 2 sets of appeal bundle on or before 4pm on 5 October 2021. I have only received 2 orders letters from the court that were issued on 7^th September 2021 and 6^th October 2021 at the same time, same envelope on 28^th October 2021. I didn’t know I had to lodge with the court a supplemental notice of appeal and 2 sets of appeal bundle. And I read the order to dismiss my appeal on October 6, then it was not until October 25 that the court filed that document. And according to the postmark on the envelope, I received that letter on 28^th October 2021. By that time, I had already passed the deadline to lodge with the court a supplemental notice of appeal and 2 sets of appeal bundle or continue with the procedures.

I should be made for relief from sanction pursuant to Order 2 rule 4 of the Rules of the High Court. My appeal should not be dismissed.”

13.  We note that the applicant has all along, including in the proceedings in the court below, resided at and used as his correspondence address Tin Yue House, Tin King Estate, Tuen Mun, New Territories (“the Address”).  None of the letters sent by the court to the applicant at the Address, such as the copy of the CALL-1 Form dated 13 May 2021 and copies of the various directions and orders made by the Registrar of Civil Appeals and by this court (made on 14 July 2021, 7 September 2021, 6 October 2021, 9 November 2021 and 7 December 2021), were returned undelivered in the post.

14.  We further note that the applicant was able, at various points in the proceedings, to adhere to the relevant court deadlines accordingly, such as the filing of his Notice of Appeal on 20 May 2021 upon receiving the CALL-1 Form sent to the Address, as well as the filing of the Summons pursuant to the directions given by the Registrar of Civil Appeals on 9 November 2021.

15.  We are therefore of the view that the applicant must be taken to have received all of the court’s correspondence sent to him at the Address, including a copy of the Unless Order, and that in the circumstances he has proffered no good explanation for the failure to comply with the same.

16.  Even if we were to accept that the non-compliance with the court’s directions and the Unless Order was excusable, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  This is because, for the reasons given below, we are of the view that the appeal has no merits and is bound to fail.

17.  The applicant’s appeal is against the decision of the Judge given on 13 May 2021 refusing leave to him to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 16 November 2018 (“the Board’s Decision”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 20 October 2016 (“the Director’s Decision”) rejecting his non-refoulement claim.

18.  The applicant is a national of Vietnam.  He arrived in Hong Kong illegally on 29 September 2014, and he was arrested by the police on the same day.  Thereafter, he lodged a non-refoulement claim on 5 October 2014.

19.  The applicant’s claim was based on a fear of being harmed or killed by his creditor because he was unable to repay his debt.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Judge’s decision (at [2021] HKCFI 1285).

20.  By a Notice of Decision dated 20 October 2016 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

21.  The applicant appealed to the Board.  After a hearing on 18 October 2018, the Board dismissed the appeal on 16 November 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board cast doubt on the credibility of the applicant’s evidence, and did not accept that he had been ill-treated as he alleged, and came to the view that there would not be a real risk that he would be harmed if he were refouled to Vietnam.

22.  The applicant filed a Form 86 on 23 November 2018 seeking to judicially review the Board’s Decision and stated in his supporting affirmation that he wished to review the Board’s Decision because he considers that the Board was unfair in its approach in its assessment of the facts and essentially sought to challenge the Board’s refusal to accept his evidence.

23.  After summarising the facts and background of the case, giving due consideration to the Director’s Decision and the Board’s Decision and hearing from the applicant at the hearing, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [17] of the CALL-1 Form:

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

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

‘13 …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.’

14.  His grounds in support of this application have been considered. They are largely his opinions without evidence in support of them. The Board is entitled to test the credibility of his evidence by relying on evidence, the burden being on him to convince the Board that the facts of his case are true. The Board has no duty to assume what he told it should be the truth, quite the contrary is true. Obviously, the Board had taken into consideration the country of origin information on the issue of corruption in Vietnam, both favourable and unfavourable to his case. The Board is at liberty to come to its conclusion on the facts of the case. The applicant’s grounds have no merits and they are rejected.

15.  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.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

24.  In the Notice of Appeal filed on 20 May 2021, the applicant merely set out his purported ground of appeal as follows:

“… I cannot return to Vietnam because my life is in danger if I return to Vietnam, I will be faced risk of being killed or torture by my creditor and gangsters since I couldn’t pay off the debt.”

25.  The applicant has in his Notice of Appeal failed to identify with particulars any error on the part of the Judge and has thus failed to raise any viable ground of appeal.  The applicant has provided no particulars as to why and how the Director or the Board were unreasonable or unfair in reaching their decisions, or how such decisions are said to be Wednesbury unreasonable. 

26.  As we consider that the applicant’s appeal has no merits and is bound to fail, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is in any event not in the interest of administration of justice to grant the relief sought.

27.  Accordingly, we refuse to grant relief from the sanction imposed by the Unless Order.

(ii) The Notice of Motion

28.  In the Notice of Motion, the applicant merely repeated the dangers he allegedly faced upon his return to Vietnam.

29.  The matters stated in his supporting affirmation filed on 5 November 2021 are essentially repetitions of those stated in his affirmation in support of the Summons, which we have already rejected for the reasons stated above.  

30.  In his written submissions lodged on 11 November 2021 (in support of both the Notice of Motion and the Summons), the applicant repeated the alleged dangers he would face if refouled and referred to the well-established principles in authorities such as ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

31.  The matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

32.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in the processing of his non-refoulement claim.

33.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

Disposition

34.  For the above reasons, the Notice of Motion filed on 5 November 2021 and the Summons filed on 19 November 2021 are dismissed.