RE TRAN VAN AI

CACV 400/2022, [2023] HKCA 554

On Appeal From [2022] HKCFI 2999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 400 OF 2022

(ON APPEAL FROM HCAL 333/2022)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 29 September 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his leave application. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 20 September 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 December 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 28 September 2015 and surrendered to the Immigration Department on 29 September 2015.  On 28 September 2015, he lodged a non-refoulement claim.  

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor and gangsters.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 28 December 2016 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board against the Director’s Decision.  After an oral hearing on 15 February 2019, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board found that on the evidence the applicant failed to prove a risk of harm against him should he return to Vietnam, and that in any event suitable options of internal relocation were available to him.  

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 12 May 2022, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affirmation, he claimed that his life would be in danger should he be refouled.   

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant’s application nor grant him leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [21] of the CALL-1 Form:

“14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’ Decision and the Board’s Decision. He simply wants to stay in Hong Kong.

17.  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.’

18.  The Board had assessed his case and was doubtful of his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

19.  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.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 5 October 2022, the applicant stated that his life would be “seriously threatened” if he was forced to return to Vietnam, and that he would face the same dangers even if he were to internally relocate within Vietnam.  He also contended that internal relocation would not be viable.

9.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is thus deemed to have abandoned his right to rely on written submissions.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.