RE BUI VAN TUYEN

CAMP 336/2021

[2022] HKCA 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 336 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1689 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 Lung (“the Judge”) dated 23 July 2020[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Vietnam aged 51. Between 1999 and 2004, he was thrice repatriated to Vietnam after having entered Hong Kong illegally. On 11 April 2016, he surrendered himself to the Immigration Department and admitted to have again entered Hong Kong illegally. He later raised a non-refoulement claim based on his fear of being harmed or killed by his creditor and the creditor’s followers due to his inability to repay his debt. The details of the applicant’s claim were set out in the first decision of the Director at [6]. We will not repeat them.

5.  By a decision dated 1 September 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds. By his further decision dated 28 August 2017, the Director considered the applicant’s claim under the BOR 2 risk^[5] ground and decided against it.

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”). The Board heard the appeal at an oral hearing held on 11 January 2018, during which the applicant gave evidence and answered questions put by the Board. By its decision dated 29 May 2018, the Board dismissed the appeal. The Board considered that, on the applicant’s evidence, the extent and nature of injuries he sustained did not attain a minimum level of severity, and that on the totality of the evidence, there was no real or substantial risk, both present and foreseeable, of torture or ill-treatment if he returns to Vietnam. The Board also found his problem to be a purely private debt, and that any risk of harm would be reduced or negated by the availability of state protection. The Board further found no evidence of the applicant’s right to life would be at risk in Vietnam, and concluded that the claim failed on all applicable grounds.

7.  On 21 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to bring judicial review. He did not put forward any specific ground for seeking relief. He merely stated in his affirmation that his claim was not fairly decided.

8.  The Judge heard the application at an oral hearing. By a Form CALL-1 dated 23 July 2020, he refused to give leave to apply for judicial review, as he was of the view that the applicant failed to show that the Board’s decision was wrong in law, irrational or procedurally irregular, and the intended judicial review accordingly had no reasonable prospect of success.

9.  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 decision within 14 days after it was made. The 14-day period for the applicant to appeal the Judge’s order expired on 6 September 2020. This is because by reason of section 31(1) of the High Court Ordinance, Cap. 4, the month of August, which is the summer vacation (see section 29(2) of High Court Ordinance and Order 64 rule 1(1) of the Rules of the High Court), is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal.

10.  By a summons filed on 3 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision. As explained above, the time for the applicant to appeal did not expire until 14 September 2020; hence it was not necessary for him to apply for an extension of time to appeal. Unfortunately, this mistake was not picked up. The Judge dealt with the application on the paper and by his decision handed down on 29 July 2021[6], the Judge refused the application.

11.  On 12 August 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

12.  Although, as noted above, the applicant did not initially need an extension of time to appeal, by the time he filed the present summons, the time for appeal had expired. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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.

13.  In the circumstances of this case, the applicant’s delay is excusable. We turn next to consider the prospects of success of the intended appeal.

14.  In assessing 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].

15.  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.

16.  The applicant’s summons stated that the grounds of his intended appeal were set out in his affirmation. The material part of his supporting affirmation stated that:

“3. … I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for judicial review.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the court to exercise its discretion in allowing this appeal out of time.”

However, no elaboration or particular was given of the ground of appeal referred to.

17.  The applicant’s written submission quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and decisions on the principle of Wednesbury unreasonableness. It submits that the decision has the effect of finally disposing of the applicant’s case making him liable to be removed, and that high standards of fairness are required in determining torture claims. It also complains that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility. It further states that the applicant did not raise any ground when he applied for leave to bring judicial review because he was unrepresented and did not know.

18.  For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1) What was stated in the applicant’s affirmation are general assertions unsupported by particulars. They do not amount to proper grounds of appeal.

(2) The Board had not made adverse finding on the credibility of the applicant or the primary facts underlying his claim. The applicant’s complaint that the Board did not fairly or properly assess his credibility is therefore misplaced.

(3) In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the risk of harm faced by the applicant did not satisfy the requirements for granting non-refoulement protection under any of the applicable grounds. In the present application, the applicant has not pointed to any error in the Board’s assessment and finding.

(4) Although the written submission sets out a number of legal propositions, it does not explain how they relate to the applicant’s claim or intended appeal.

19.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for 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 applicant’s summons filed on 12 August 2021.