RE DONG VAN QUYEN

CAMP 340/2021

[2021] HKCA 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 340 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 765 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 C P Pang (“the Judge”) dated 8 October 2020 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and 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”) rejecting his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 29.  He entered Hong Kong illegally and surrendered to the Immigration Department on 28 December 2015.  He raised a non-refoulement claim based on fear of being harmed or killed by his creditor because he has not been able to repay his debt.  The details of the applicant’s claim were set out in the Director’s decision at [6].  We will not repeat them.     

6.  By a decision dated 21 April 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 7 August 2017.  By its decision dated 11 September 2017, the Board dismissed the appeal.  The Board considered that, on the applicant’s case, it is purely a case of money dispute between two civilians, and the creditor and his men had never physically attacked the applicant.  The Board found the applicant has failed to establish there are substantial grounds for believing he would be subject to harm or torture if he were sent back to Vietnam.  It also considered that internal relocation alternatives are reasonably available to the applicant.  The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Vietnam, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 3 May 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  No grounds in support of the application were provided.  The applicant only stated in his affirmation that he could not return to Vietnam where he would be killed by “black society”.

9.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for judicial review should be made promptly, and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was out of time by about five months. 

10.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 8 October 2020[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [17] to [24]. 

11.  In gist, the Judge pointed out that no reason had been given for the delay in making the judicial review application, and no ground had been put forward in support of the intended judicial review.  Having examined the Director’s and the Board’s decisions and the reasons given for them, the Judge concluded there was no error of law or procedural unfairness in their decisions, and the intended judicial review has no prospect of success.  He accordingly refused to extend the time for applying for judicial review and dismissed the application for leave to judicial review.    

12.  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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 22 October 2020.

13.  By a summons filed on 26 November 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Chan heard the application on 13 July 2021, at which the applicant was absent. It appears from the Court record that the notice of hearing sent to the address given by the applicant had been returned to the court undelivered.  Deputy High Court Judge Chan proceeded to deal with the application on the papers, and by his decision handed down on 3 August 2021[6] refused the application. 

14.  On 16 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

15.  In deciding whether to extend time for appealing against the Judge’s decision refusing him 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 respondent if an extension of time were granted. 

16.  The applicant was late for more than one month when he filed the summons on 26 November 2020.  The delay is not insubstantial.  In the application made to the Court of First Instance, the applicant stated that he cannot read English, did not have financial means to seek legal advice, and was unaware of the 14-day time limit for appeal.  In the affirmation in support of the present application, the applicant further stated that he did not receive the decision timely as he was serving sentence. In view of the latest explanation, we are prepared to accept the reason for the delay.      

17.  As to 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].

18.  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.

19.  In the present application, the applicant has not put forward any specific ground of appeal in either the summons or the affirmation.  He merely asked in his supporting affirmation that he be given leave to advance a new ground of appeal.  There was, however, no elaboration on what the new ground was.

20.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It further complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.

21.  In our view, the matters put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  The ground set out in the supporting affirmation is only a bare general statement, with no details or particulars.  As for the written submission, it was not shown how the legal propositions quoted in it relate to the applicant’s case.  For example, the reference to section 37ZT of the Immigration Ordinance is completely misplaced because we are not concerned with late filing of notice/petition to appeal with the Board.  

22.  We have also examined the Board’s decision.  Like the Judge, we do not find any legal errors, irrationality or procedural irregularities in the Board’s finding and decision. In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing to extend the time to apply for judicial review.

23.  As the applicant’s intended appeal against the Judge’s refusal to give 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 summons filed on 16 August 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] 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.

[3] 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.

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

[5] [2020] HKCFI 2470.

[6] [2021] HKCFI 2195.