RE NGUYEN DUY QUAN

CAMP 127/2022

[2022] HKCA 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 127 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 914 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 8 April 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written statement to support his application.  Despite the directions given by the Registrar of Civil Appeals, he has not put in any written submission.    

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 41.  He entered Hong Kong illegally and was arrested by the police on 10 January 2013.  A deportation order was issued against him on 28 November 2013 and he was repatriated to Vietnam on 18 December 2013.  He later returned to Hong Kong illegally and surrendered to the Immigration Department on 22 September 2014, and raised a non-refoulement claim based on her fear of being arrested, harmed and forced to make confession by the Vietnamese police force due to his religious belief.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By his decision dated 15 February 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  An oral hearing was held on 3 October 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 7 December 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence incredible and unreliable, having regard to the many material inconsistencies and discrepancies between the accounts he gave in the non-refoulement claim form, at the screening interview and at the appeal hearing.  The Board concluded that the events asserted by the applicant probably did not happen, or if they did happen, they had been grossly exaggerated.  The Board considered the applicant would not face any risk of real and serious personal harm, and that his claim failed on all applicable grounds.

8.  On 24 May 2018, before the Board gave its decision, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Director’s decision.  He did not put forward any specific ground for seeking relief.  He merely stated in his affirmation that it would not be safe for him to return to Vietnam.  The applicant did not respond to the Court’s letter dated 30 July 2020 asking him to confirm that his intended judicial review application was against the decision of the Board.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 8 April 2021, he refused to give leave to apply for judicial review for the reasons set out in [10] to [16] as follows:

“10. … as it has been held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, CACV 54/2018, 24 August 2018, that the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a claimant, as in the present case, I therefore treat the application now before me as one by the Applicant for leave to apply for judicial review of the Board’s decision.

11. The Applicant however as noted above has not put forward any proper ground for his intended challenge and notwithstanding the subsequent invitation for him to do so, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 35 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, 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 the Applicant’s 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.

15. 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.

16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 30 July 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The applicant was absent at the oral hearing on 12 January 2022.  By his decision handed down on 26 January 2022[6], the Judge refused the application. 

12.  On 26 April 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of 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. 

14.  The applicant was more than three months late when he made the application for extension of time on 29 June 2021.  He explained in his written statement the delay on the basis that the Judge’s order was written in English which he did not understand, and he needed help from his friend to explain the letter and file the application.  While we accept that the applicant may have difficulty understanding English, we do not find the explanation entirely satisfactory given that there had been a serious delay and a litigant is under a duty to act expeditiously.  Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.    

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the affirmation in support of the present application, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country.  He also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time.  The written statement stated that the appeal was very important to the applicant.  It complained that the Director ordered the applicant’s deportation without considering his human rights. 

18.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  It is the duty of the applicant to set out in his Form 86 his grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and his Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(2)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

(3)  Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The applicant has not put forward any ground to challenge the findings made by the Board.  In view of the Board’s adverse finding on the applicant’s credibility and rejection of the factual basis of his claim, the complaint about the deportation order has no proper foundation.

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.           

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 26 April 2022. 

[1] [2021] HKCFI 927

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2022] HKCFI 206