RE NGUYEN NGOC DUC

CAMP 524/2022, [2023] HKCA 672

On appeal from [2021] HKCFI 2181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 524 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2749 OF 2018)

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J U D G M E N T

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Hon Chu VP (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 K W Lung (“the Judge”)  dated 5 August 2021[1] dismissing 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. 

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application an extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, 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 30.  He claimed he entered Hong Kong illegally via Mainland China on 22 November 2015.  On 23 November 2015, he surrendered to the Immigration Department and on the same day, he lodged a non-refoulement claim on the basis he would be killed by his creditor due to an outstanding debt, if refouled to Vietnam. The details of the applicant’s claim were set out in the decision of the Director at [5] and [6].  We will not repeat them.   

6.  By his decision dated 9 December 2016, 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.  The Board held an oral hearing on 20 July 2018, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 30 November 2018, the Board dismissed the appeal.  In essence, the Board found the applicant’s evidence unreliable, having regard to the many material inconsistencies and discrepancies between the accounts he gave in the non-refoulement claim form and at the hearing.  In particular, he gave implausible responses to the Board’s queries relating to the details of the debt, being a centrepiece of his claim, which greatly undermined his credibility.  The Board further found the risk of harm from the creditor was low, and considered that state protection and internal relocation options were reasonably available, which would negate or reduce any harm that the applicant might face.  The Board concluded that the applicant’s claim failed on all applicable grounds.

8.  On 4 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any specific ground for seeking relief.  He only stated in his affirmation that it would not be safe for him to return to Vietnam, and that he could not prove the risk of harm because he could not guess what might happen to him in the future.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 5 August 2021, he dismissed the application for the reasons set out in [12] to [16] as follows:

“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 are his opinions only without any evidence in support of them. In any event, internal relocation is obviously available to him if he returns to Vietnam.

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.”

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.  The 14-day period for the applicant to appeal the Judge’s order ended on 1 September 2021[6].   

11.  By a summons filed on 28 September 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 28 October 2022[7] refused the application. 

12.  Under Order 59 rule 14(3)  of the Rules of the High Court, the applicant may within seven days of the Judge’s refusal make a renewed application for extension of time to appeal to this Court.  On 8 December 2022, the applicant filed the present summons to make a renewed application to extend the time for appealing against the Judge’s dismissal of his leave application.  The summons is late by four days.  The applicant has given no explanation for the delay.

13.  On the renewed application, the court when considering whether to extend time for appealing against the refusal of leave to apply for judicial review 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 nearly 13 months late when he applied to the Judge for extension of time.  This is very serious delay.  The applicant explained in his affirmation in support of the application made to the Judge it was because he had lost his recognizance form that caused the delay in filing the appeal.  We do not find the applicant has satisfactorily explained his delay.  Firstly, he had not adduced any supporting document or evidence.  Secondly, the loss of the recognizance form cannot explain the long delay of over one year.  In view of the undue and inordinate delay, the applicant has to show that his intended appeal has a real prospect of success.  

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]. Relevantly, 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.

16.  In his supporting affirmation, 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. 

17.  The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given that he does not enjoy good health and is not an active person.  It is said that he will be disadvantaged in the labour market and may not be able to find a job to support himself.  It also said that with their nationwide network and connections with the police and government officials, his enemy can find him no matter where he goes.  The applicant further complained that the Director did not consider his human rights under the Basic Law and various international covenants.  Finally, it said that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, his life will be in danger.

18.  For the following reasons, we are of the view that the matters put forward by the applicant do not amount to viable grounds of appeal:

(1)  What was stated in the applicant’s affirmation and written statement are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  The applicant has not identified any error in the Judge’s decision that warrants interference by this Court.

(2)  It is also the duty of the applicant to set out in the 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. 

(3)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, rejected the applicant’s claim as being incredible.  However, it also went on to hold that, even accepting his case to be true, the risk of harm was very low and did not satisfy the requirements for granting non-refoulement protection.  Given that the applicant has not pointed to any error in the Board’s assessment, the assertion of fear of harm in the written statement has no proper factual foundation and cannot amount to arguable ground of appeal.   

(4)  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.   

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.   

20.  As the applicant’s intended appeal against the Judge’s refusal of 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 8 December 2022.