RE NGUYEN DUC BANG

CAMP 173/2023, [2024] HKCA 345

On Appeal From [2023] HKCFI 109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1434 OF 2018)

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J U D G M E N T

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

1.  On 2 May 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 26 April 2023 ([2023] HKCFI 966)  (“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 12 January 2023 ([2023] HKCFI 109)  (“the Leave Decision”)  refusing to grant extension of time and dismissing his application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 21 February 2017, dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 24 September 2015 and 29 November 2016 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnam.  He last entered Hong Kong on 16 December 2013 as a visitor and was permitted to remain until 22 December 2013.  He overstayed and was arrested on 18 March 2014.  On 19 March 2014, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed by his creditors and lose his religious freedom upon his return.  Details of the applicant’s claim have been summarised by the Judge at [7] - [12] of the Leave Decision.

5.  By a Notice of Decision dated 24 September 2015 and a Notice of Further Decision dated 29 November 2016 (collectively referred to as “the Director’s Decisions”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decisions to the Board.  On 21 February 2017, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decisions.  The Board’s reasons for its decision were summarised by the Judge at [13] - [17] of the Leave Decision:

“13.  In view of the Applicant’s evidence about religious persecution as summarised in paragraph 12 above, the Board was satisfied that there is no real chance that he will suffer persecution by reason of his religion if he is returned to Vietnam.  It then proceeded to consider his claim based on risks from the Moneylenders.

14.  The Board found that the Applicant was not telling the truth.  It noted that when the Applicant arrived in Hong Kong in December 2013 he told the authorities that he came to visit a relative rather than to seek asylum.  He only raised a non-refoulement claim when he was arrested for overstaying three months later.  The Board also found he had a ‘tendency to make up … evidence as he goes along’, as demonstrated by his first time assertion in the Notice of Appeal to the Board about the threats made to his mother.  He was inconsistent as to whether his mother had run away and he lost contact with her as stated in the Notice of Appeal or he had been in touch with her as recently as three weeks before the hearing before the Board.  The Board did not find him credible and was not satisfied that he had proved his claims on a balance of probability.

15.  Even on the basis of the case as he asserted, the Board was not satisfied that there is any real chance that he will suffer severe pain at the hands of the Moneylenders were he to return to Vietnam. Except for one pawnbroker and another Moneylender who was engaged in the business of moneylending, the other Moneylenders were vegetable sellers and a construction worker.  No gangster was actually involved in collecting the debt.  The worst violence he suffered was a grab on his collar by Ms Huong, but he managed to escape.

16.  Furthermore, the fact that the Moneylenders could not locate him while he was hiding in An Lao and Ha Coi showed that they did not have the ability to locate him outside his home area in Haiphong.  The Board considered it reasonable for the Applicant to relocate himself elsewhere in Vietnam to avoid the possible risk and it would not be unduly harsh to expect him to do so.

17.  For the above reasons, the Board dismissed his appeal against the Notices.”

7.  On 20 July 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By that time, he was already over one year late in taking out his application.  No ground of review was given in the Form 86.  In his supporting affidavit, he only repeated that he disagreed with the Director’s Decisions and that some documents issued by the Vietnamese government could not be trusted.

THE JUDGE’S DECISION

8.  As the applicant did not request an oral hearing, the Judge determined his application on paper.  On 12 January 2023, the Judge refused to grant extension of time to the applicant and dismissed his application for leave to apply for judicial review.  His reasons were stated at [20] - [23] of the Leave Decision:

“20. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notices. It correctly identified the factual and legal issues involved in the claims.

21. The Applicant’s claims were founded on his alleged loans owed to the Moneylenders and their threats. The Board carefully weighed the evidence and assessed his credibility. It found him incredible and his evidence inherently improbable. It did not accept his evidence about his loans. It was not satisfied that there was a real chance that he will suffer severe pain at the hands of the Moneylenders were he to return to Vietnam. As the Applicant bore the burden of prove of his claims, such findings were fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of internal relocation. These are finding of facts which the court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision.

22. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board. There are no such vitiating elements in the Decision. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

23.  In view of the total lack of merits in the intended judicial review, the Court did not find it necessary to investigate the reasons for the long delay, the relative prejudice to the Applicant and to the intended respondent as a result of the Court’s decision one way or the other.  Obviously, the application does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.  For the above reasons, no extension of time was granted for filing the Form 86 and the application for leave to apply for judicial review was refused.”

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 7 February 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was 12 days late with his intended appeal.

11.  On 26 April 2023, the Judge refused the applicant’s application.  The Judge noted that the applicant failed to give any explanation for his delay.  In the absence of any grounds of the intended appeal, the Judge held that the applicant had no intention to prosecute his intended appeal and his intended appeal had no prospect of success.

THIS APPLICATION

12.  By a summons and a supporting affirmation filed on 2 May 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, the applicant did not give any reason for his delay or any ground of appeal.  In his supporting affirmation, he merely stated that the Judge’s decisions had been unfairly reached without allowing him an opportunity to clarify his case and his country’s situation.

13.  Contrary to the directions of the Registrar of Civil Appeals dated 2 May 2023, the applicant failed to lodge any written submissions.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

18.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  In our view, although the applicant’s delay of 12 days is not insignificant, we are of the view that his intended appeal is wholly without merit.  The applicant fails to advance any proper ground of appeal and did not specify with particulars how the Judge erred in the Leave Decision.  The applicant already had ample opportunities to clarify his case and his country’s situation before this court and the Judge.  He also fails to specify with details what further clarifications he wishes to make.  In the circumstances, his allegations are not valid grounds of appeal and are in any event wholly unmeritorious.

20.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 2 May 2023 is dismissed.