PHAM VAN QUYET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 313/2023, [2023] HKCA 1325

On Appeal From [2023] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 313 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 755 OF 2023)

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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 7 July 2023[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 26 January 2023. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 21 December 2021 rejecting his non-refoulement claim.

2.  On 12 September 2023, Deputy High Court Judge K W Lung refused to extend time for the applicant to appeal against the Judge’s decision of 7 July 2023.

3.  As the summons and the supporting affirmation of the applicant filed in this application are written in English, we will give our judgment in English.

Background

4.  The applicant is a national of Vietnam born in 1988.  He had entered Hong Kong illegally in December 2017, was arrested, and was voluntarily repatriated to Vietnam in January 2018.  He claimed to have last entered Hong Kong illegally on 29 December 2020 and, for which, was subsequently arrested by the police on 5 January 2021.  He lodged his non-refoulement claim on 28 January 2021 on the basis that he would be harmed or killed by his creditor (Vu The Thien) as a result of his inability to repay the loan, if he was refouled to Vietnam.

5.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 21 December 2021, the Director rejected the claim. 

6.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 18 August 2022, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 26 January 2023, the Board dismissed the appeal and affirmed the decision of the Director on the basis that the applicant failed to establish that he would be subjected to real risk of harm if he returned to Vietnam, due to the findings that the private dispute between the applicant and his creditor had no involvement of the Vietnamese Government and that state protection and internal relocation would be available to the applicant.

The Judge’s decisions in the court below

7.  21 days after the expiry of the 3 months’ time limit, on 17 May 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form.  In the supporting affirmation, the applicant stated:

“ I do not agree with the Decision of Torture Claims Appeal Boa[r]d. So I want to file a Judicial Review against them. Because I cannot return back now. My life will be [in] danger over there. So I hope to submit this petition to the court [for] Judicial Review.”

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 7 July 2023, the Judge issued his decision to refuse to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact-finding power rested in the Director and the Board; he did not find any error of law or procedural unfairness in the Board’s decision; the findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that he had any realistic prospect of success in the proposed judicial review.  

9.  The applicant filed a summons on 8 August 2023 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In his affirmation, the applicant stated that it is dangerous for him to return to Vietnam as he would be killed, he is unrepresented and he has no means to instruct a private lawyer.  On 12 September 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 21 September 2023, the applicant made an application for leave to “appeal to the Court of Appeal from the Order of Deputy High Court Judge K.W. Lung (“the Order on 12 September 2023”) out of time”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 7 July 2023 refusing leave for judicial review. 

11.  In the applicant’s supporting affirmation, he stated that he is “unrepresented and did not have access to any legal advice”.  He also stated that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review” without any further elaboration.

12.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 21 September 2023.  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

13.  The applicant was late for about 3 weeks when he filed his initial summons on 8 August 2023.  In his supporting affirmation, the applicant stated that it was too dangerous to return to Vietnam as he would be killed and that he was unrepresented with no means to instruct a private lawyer.  As this is not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

14.  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.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal, after the Board had heard the applicant and assessed his evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it considered that the past incidents did not reach the requisite level of harm, there was no real risk of serious harm upon refoulement, reasonable state protection was available, there was no risk of persecution, and internal relocation to other cities in Vietnam was a viable option.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review. 

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 21 September 2023 is accordingly dismissed.