NGO XUAN TUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 95/2024, [2024] HKCA 1140

On Appeal From [2023] HKCFI 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 219 OF 2020)

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BETWEEN

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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 5 May 2023[1] dismissing the applicant’s application for leave 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 6 January 2020. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 5 June 2019 rejecting his non-refoulement claim.

2.  On 15 November 2023, the Judge made no order for the applicant’s application to extend time to appeal against the Judge’s decision of 5 May 2023.

Background

3.  The applicant is a national of Vietnam born in 1992. He claimed to have entered Hong Kong illegally from Mainland China on 6 November 2018 for which he was subsequently arrested by the police on 9 November 2018. On 3 and 10 April 2019, he submitted his written representations seeking non-refoulement protection to the Immigration Department. The applicant’s formal non-refoulement claim form dated 8 May 2019 was lodged on the basis that he would be harmed or killed by his creditor (Kien) as a result of his inability to repay his loan, if he was refouled to Vietnam.

4.  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 5 June 2019, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision. The Board determined the applicant’s appeal without an oral hearing. In its decision dated 6 January 2020, the Board dismissed the appeal and affirmed the decision of the Director. The Board found that there was no risk of harm if the applicant was refouled to Vietnam, because the applicant’s claim was purely a private monetary dispute without involvement of the government, there was no objective evidence or COI to show police or state acquiescence as alleged, the applicant’s past harm did not reach the requisite level of harm, and internal relocation to other large cities like Hanoi and Ho Chi Minh City would be viable for the applicant.

The Judge’s decisions in the court below

6.  On 21 January 2020, 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 simply stated that he did not agree with the Board’s decision, that he could not go back to his home country and that his life was still in danger. He also annexed the Board’s decision together with its covering letter.

7.  By affirmation dated 6 December 2022, the applicant asked to withdraw his application for leave to apply for judicial review because he felt safe to return to Vietnam. He also confirmed that he wished to withdraw his application of his own free will and that he understood the consequences of the withdrawal. On 5 May 2023, the Judge issued his decision to dismiss the application for leave to apply for judicial review, having regard to the applicant’s request to withdraw his application, and applying the decision in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19]. There was no determination of the application on merits.

8.  Long after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 7 September 2023 together with a supporting affirmation to apply for extension of time to appeal out of time. In his affirmation, the applicant stated that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but there was no elaboration or explanation. On 15 November 2023, the Judge issued his decision in writing making no order for the application on the grounds that there was no basis for the applicant to appeal the Judge’s order and that there was no jurisdiction for the Judge to deal with his application as the application had been dismissed and the court’s order had been sealed at [7].

The renewed application before this Court

9.  By summons filed on 28 May 2024, the applicant made an application for leave to “appeal out of time the order dated 15 November 2023 by the Deputy High Court Judge K.W. Lung … dismissing the Appellant leave to apply for Judicial Review”. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 5 May 2023 dismissing the application for leave for judicial review.

10.  The applicant filed an affirmation stating that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country and that he believed the merits of this ground would constitute sufficient or justification for the court to exercise its discretion in allowing the appeal out of time. The applicant further filed a “statement” on the same date in which he stated that the Judge ruled that the applicant had no chance of success in reviewing the decisions of the Board and the Director, that he and his child would be seriously harmed or killed by gangsters in Vietnam, that internal relocation for him and his son was not feasible, that the gangsters could possibly locate the applicant within Vietnam, and that his human rights under various Conventions were not considered.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 28 May 2024, aside from the earlier “statement”.

12.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A) (“RHC”), 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 over 3 months when he filed his initial summons on 7 September 2023. In his supporting affirmation, the applicant stated that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review without any elaboration or explanation. As the applicant did not even provide any explanation at all for the substantial delay, the court will not extend time unless there are real prospects of success in the intended appeal.

14.  In the court below, the applicant had, of his own motion, applied to the court to withdraw his application for leave to apply for judicial review with full knowledge of the consequences. The Judge had accordingly acceded to his application to withdraw. As there was nothing outstanding in the action, and the Judge correctly concluded the action by making an order to dismiss the application (Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19(1)]). As the dismissal was based on the applicant’s own application to withdraw his application for leave to apply for judicial review, it was not necessary for the Judge to adjudicate on the merits of that application (Re Manik Md Mahamudun Nabi at [19(2)]). Therefore, there was no basis for the applicant to criticize the Judge for alleged various failures to assess the merits of the underlying judicial review.

15.  On the applicant’s subsequent summons for extension of time to appeal, the Judge made no order as to the application. Strictly speaking, the Judge does have power to deal with an application for extension of time to appeal under Order 59 rule 15 of the RHC (Re Cu Van Duc [2024] HKCA 641 at [14]), but the Judge considered that there was no basis for appeal since the applicant had himself withdrawn his application. In these circumstances, the applicant’s criticisms on the Judge’s failure to assess the merits of the underlying judicial review do not assist his case or present any real prospects of success in his intended appeal.

16.  In any event, 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.

17.  In conclusion, we are of the view that there is no merit in the intended appeal and we are satisfied that extension of time should be refused. The applicant’s summons dated 28 May 2024 is accordingly dismissed.