RE DO VAN QUANG

CACV 248/2023, [2024] HKCA 544

On Appeal From [2023] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2023

(ON APPEAL FROM HCAL NO 704 OF 2023)

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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.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 28 July 2023 ([2023] HKCFI 1938)  (“the Leave Decision”)  refusing to grant him extension of time and dismissing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 4 January 2023, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 April 2021.

2.  On 7 August 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 8 March 2020 and surrendered to the Immigration Department on 14 April 2020 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [1] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 28 April 2021 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 4 January 2023, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board accepted the Applicant’s claim of fear of harm arising from his dispute with his creditor over his outstanding debts but found no evidence of any real intention of his creditor to seriously harm or kill him other than to press him for repayment of his loan, and that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 12 May 2023, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By that time, he was over one month late in taking out his application.  No ground of intended review was given by the applicant in his Form 86.  In his supporting affirmation, he repeated the procedural history of his non-refoulement claim and that he was not aware of the time limitation in making his application for leave to apply for judicial review as he did not have a good understanding of the law and the English language.

7.  On 4 July 2023, the applicant attended an oral hearing in person before the Judge.  A Vietnamese interpreter was present to provide language assistance.

8.  On 28 July 2023, the Judge gave his decision refusing to grant the applicant extension of time and refusing his application for leave to apply for judicial review, for the following reasons:

“12. As the last day of the 3 month-period for him to file his Form 86 fell on 4 April 2023, the Applicant was therefore some 5 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of 5 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and it was only later when he reported on his recognizance that he was so informed by his immigration officer, but by then he was already out of time with his intended application.

14. The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his serious delay.

15. As for the merits, if any, of his intended application, the sole ground put forward by the Applicant as noted above is however just some vague and bare assertion of his without any relevant particulars or specifics or elaborations as to how it applies to his case or how the Board or the Adjudicator had erred in the decision, nor was he able to do so at the hearing of his application. As such I do not find this ground reasonably arguable for his intended challenge, and given the correct findings by both the Director and the Board that any risk arising from what was essentially a private monetary dispute between the Applicant and his creditor even on the factual basis of his own case that it would be negated by state protection and internal relocation upon his return to Vietnam, I do not find any merits in his intended application either.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

THIS APPEAL

9.  In his Notice of Appeal filed on 7 August 2023, the applicant only stated:

“Appeal the Refusal of the Supreme Court. I’d like to the Supreme Court because now my life still in danger with the money that I’ve borrowed a loan cannot repayable. If I return to Vietnam I’d be harmed and killed by my creditor over my outstanding debt. I am now very afraid of that. That’s threaten to my life.” (sic)

10.  Contrary to the directions of the Registrar of Civil Appeals dated 7 August 2023, the applicant did not lodge any written submissions.

DISCUSSION

11.  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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

13.  In our view, the applicant’s appeal is a nonstarter.  He fails to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  His appeal must fail on this ground alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.