RE HOANG VAN RONG

CAMP 491/2022

[2023] HKCA 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 491 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 931 OF 2019)

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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 June 2022[1] refusing to grant 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 22 June 2018. In that decision, the Board rejected the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1986. He entered Hong Kong illegally on 14 July 2014. On 18 September 2014 he surrendered to the Immigration Department, and raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor called Toan. He claimed that he had borrowed money from Toan for gambling. The detailed factual contents of his claim were set out at [23] to [28] of the Board’s decision dated 22 June 2018.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[2] BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] By notice of decision dated 15 November 2017, the Director rejected the applicant’s claim.

4.  The applicant appealed to the Board against the decision of the Director. The Board decided to determine the appeal without an oral hearing. In its decision dated 22 June 2018, the Board stated that the applicant’s fear was based only on his inability to repay the creditor. The applicant said that the creditor was a friend from his village, that he did not charge him any interest, and did not specify a deadline for repayment. The creditor only told the applicant to repay when he had enough money, and that he could repay by instalments. There was no evidence that the creditor intended to harm him. Further, the Board found that it was viable for the applicant to relocate with Vietnam. Accordingly, the Board dismissed the appeal.

The Judge’s decisions in the court below

5.  Long after the 3 months prescribed for an application for leave for judicial review under Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), on 4 April 2019 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. The applicant did not specify any ground for judicial review either in the Form 86 or in his accompanying affirmation.

6.  On 7 June 2022, the Judge gave his decision after consideration of the papers alone, refusing to extend time for the applicant to apply for leave to apply for judicial review and dismissing his application for leave to apply for judicial review. The Judge’s reasons are set out in the Form CALL-1 as follows:

“ 13. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. 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.’

17. The applicant has not raised any valid ground to challenge the Board’s Decision.

18. 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.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

7.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court. On 5 September 2022, he filed a summons in the Court of First Instance to apply for extension of time to appeal. In his affirmation, the applicant said that he did not know English and did not have the means to obtain legal advice. He thought that after the prescribed 14 days, there was no further remedy available, but he was subsequently reminded by the Immigration Officer to go to the court for appeal. Only then did he look for help to complete the documentation.

8.  In his written decision dated 13 October 2022, the Judge dismissed the application for extension of time as he considered that there was no merit in the intended appeal.[6]

The renewed application before this Court

9.  By summons filed on 23 November 2022, the applicant seeks an extension of time from this court for him to appeal. He also filed a statement saying that if he returned to Vietnam his life would be seriously threatened. He said that creditors and gangsters in Vietnam are different from those in Hong Kong and are cruel and violent. He said it would not be feasible for him to relocate in Vietnam, as his health was not good and he was not an active person, and it was possible for the creditor to locate him given the nationwide network of gangsters.

10.  The applicant did not lodge any further written submissions for this application.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

12.  The applicant’s application to the Judge for extension of time to appeal was made about 1.5 months late (not counting August which is the court vacation). This is a substantial delay for which there is no proper and valid excuse. Time should not be extended unless there is a real prospect of success in the appeal.

13.  As the Board noted, there was simply no evidence that the applicant would be subjected to any harm, other than his claim that he had not repaid his creditor, Toan. But Toan was a fellow villager, not a loan shark. In any event the vague comments raised by the applicant against internal relocation do not show a reasonable ground for judicial review. In his summons the applicant sought leave to advance a “new sole ground of appeal”, but did not specify what it was. Nor did he identify any alleged error in the Judge’s decision to dismiss the application for leave to apply for judicial review. It follows that there is no prospect of success in the intended appeal.

14.  For these reasons, time should not be extended. The applicant’s summons is accordingly dismissed.