RE PHAM QUANG VINH

CAMP 184/2022

[2023] HKCA 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 26 OF 2022)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  dated 8 March 2022[1] refusing to grant leave to apply for judicial review.  The intended judicial review has been dealt with as directed against the decision of the Director of Immigration (“Director”)  dated 25 October 2021 rejecting a subsequent non-refoulement claim made by the applicant. 

2.  On 26 May 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a Vietnamese national, born in 1987.  He entered Hong Kong illegally in July 2015, and was arrested as an illegal immigrant on 25 July 2015.  He raised a non-refoulement claim on 3 August 2015.

4.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or killed by a creditor who had lent the applicant money which the applicant had not repaid at that time.

5.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By notice of decision dated 4 May 2017, the Director rejected the applicant’s claim.  The applicant appealed that decision to the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”), though on 1 September 2017 he was repatriated to Vietnam.  The Board nevertheless considered the applicant’s appeal on the basis of the available materials and dismissed the appeal in its decision in writing dated 18 September 2018.

6.  The applicant subsequently entered Hong Kong illegally again, and was arrested by the police on 1 September 2021.  By written representations dated 6, 13 and 26 September and 8 October 2021, the applicant raised another non-refoulement claim.  He claimed that during the years 2015 to 2017, while he had fled to Hong Kong, his family had repaid the loan to the creditor.  However, after returning to Vietnam in 2017, the applicant borrowed money from the same creditor again in 2018.  He was initially able to pay the interest, but when Covid-19 broke out, his business went into difficulties and he was unable to service the loan.  The creditor threatened and assaulted him and so the applicant fled to Hong Kong again.

7.  By notice of decision dated 25 October 2021, the Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of his previous claim, and refused to permit the applicant to make a subsequent claim.

The Judge’s decisions in the court below

8.  On 10 January 2022, the applicant sought leave from the Court of First Instance to apply for judicial review against the Director and the Board in respect of a decision dated 18 September 2018.  This indicates that the judicial review was targeted at the Board’s decision on the applicant’s prior non-refoulement claim.  The applicant did not specify any ground for judicial review either in the Form 86 or the accompanying affirmation.

9.  Based on consideration of the documents alone, on 8 March 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [16] – [24] of the Form CALL-1 as follows:

“ 16. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18. 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.’

19. The Board decided to deal with the applicant’s appeal on paper, having considered the Court of Appeal’s decision in ST v Betty Kwan CACV 115/2013. Although the Board had not specified the factors in this case to support its decision of not conducting an oral hearing for the appeal, the fact that the Board did not raise the credibility issue of the applicant’s evidence, coupled with the fact that the Board had relied upon the applicant’s evidence to evaluate the risks he alleged, I can see no injustice to the applicant for not having an oral hearing for his appeal. Under the circumstances, the Board is, under section 12A of Schedule 1A of the Ordinance, entitled to deal with the appeal on paper.

20. Since the applicant has no application for leave to apply for judicial review of the Board’s Decision, the Board’s Decision has become final. This is his application for leave to apply for judicial review of the Director’s Decision.

21. It is clear that the Director has come to his conclusion that the reason for the applicant to leave Vietnam and stay in Hong Kong is to avoid his creditors. This reason had been considered in his previous claim by the Director and the Board. He is quite entitled to find that, given the change of circumstances after his previous claim, the additional information will not give him any realistic chance of success in his subsequent claim.

22. The applicant has submitted no valid ground to assist his application. The Director had considered his evidence and applied the appropriate law to his case.

23. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s findings are not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.   There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.”

10.  The 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A)  for an appeal against the Judge’s decision would ordinarily have expired on 22 March 2022.  Since there was a general adjournment of proceedings at that time due to the pandemic, the deadline was extended to the day after the general adjournment ceased, i.e. to 12 April 2022.  The applicant took out a summons on 14 April 2022 to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, he said he faced the risk of being killed and tortured by his creditor since he could not repay the loan, and that the decision of the court had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

11.  The Judge determined the application for extension of time on paper without an oral hearing.  In his decision dated 26 May 2022, the Judge dismissed the application as he considered that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

12.  By summons filed on 7 June 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In his supporting affirmation, the applicant said that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country, and that this ground was sufficient justification for allowing him to appeal out of time.  In a “statement” filed at the same time, the applicant said that he went to the High Court on 12 April 2022 but did not get an entry ticket (which had a limited quota on that day because of the pandemic), and that on 13 April he was sick and could not go out, but managed to go to court and file his summons on 14 April.  He said that it was not feasible for him to relocate within Vietnam, contrary to the suggestion of the Director, because his health was not good, he was not an active person, and there was no guarantee he would be able to adapt to a new place and find a job.  Further, with the nationwide social network of gangsters, it would be “quite possible” for the creditor to find out his new residence.  If he returned to Vietnam, his life would be seriously threatened because creditors and gangsters in Vietnam are cruel and violent and willing to kill people to satisfy their anger and ferocity.

13.  The applicant did not lodge any further written submissions despite the directions of the Registrar of Civil Appeals.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  Since the applicant was only late by 2 days when he filed his summons for extension of time in the court below on 14 April 2022, we shall concentrate on whether there is any merit in the intended appeal.

15.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal.  The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward for reversing the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

16.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“ 37ZO. Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

17.  The Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of his previous claim.  The Judge held that there was no ground for judicial review of the Director’s decision.  Under Order 53 rule 3(3)  of the Rules of the High Court, the Judge was entitled to determine the application for leave to apply for judicial review on the papers without a hearing.  In so far as the applicant’s complaint of unfairness refers to not having an oral hearing before the Judge, it has no basis.  Nor does it assist the applicant for him simply to complain that the Judge did not give him “an opportunity to clarify his case and the situation in his country”, without pointing out what specific matters the Judge was mistaken about which the applicant could have clarified.

18.  We note, however, that the applicant’s Form 86 sought, on its face, judicial review of the decision dated 18 September 2018, which was the Board’s decision on the appeal concerning the applicant’s prior non-refoulement claim.  It is arguable that the Judge had mistakenly treated the application as one directed at the Director’s decision in 2021 on the applicant’s subsequent claim.

19.  Nevertheless, having considered the Board’s decision ourselves, we are unable to see any viable ground for judicial review of that decision.  It was obviously a very late application for the applicant in January 2022 to seek judicial review of the Board’s decision issued in September 2018.  There was a delay of over 3 years.  Further, as mentioned above, the applicant himself has not identified any ground for judicial review. The Board noted that, based on the applicant’s own evidence, he did not comply with the creditor’s demands during the period from October 2013 to July 2015. Even then, although the creditor continued to visit the applicant’s shop and make his demands, no harm was inflicted on the applicant.  The Board noted that the applicant only knew his creditor was a moneylender and did not know anything else about him.  The Board also found that internal relocation would be viable for the applicant who was then 31 years old with 11 years’ education and 9 years’ work experience.  These are factual findings that are within the province of the Board as the primary decision-maker.  The court has no power to interfere with them unless they are vitiated by public law errors.  The applicant has failed to show any such defect in the Board’s decision.

20.  Accordingly, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.