RE DINH KHAC NAM

CAMP 407/2022

[2023] HKCA 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 407 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1658 OF 2021)

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J U D G M E N T

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Hon Chu VP (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 P Li (“the Judge”) dated 24 March 2022[1] 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 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’s intended judicial review is against the decision of the Director of Immigration (“the Director”) refusing his request to make a subsequent claim for non-refoulement protection.

5.  The applicant is a national of Vietnam aged 28. In November 2013, he entered Hong Kong illegally. In January 2014, he surrendered to the Immigration Department. On 9 April 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by (1) his step-father, and (2) his creditor and his triad followers due to his inability to repay his debt.

6.  By two decisions dated 30 May 2016 and 19 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. The applicant had not appealed against the decisions.

7.  A deportation order was issued against him on 12 October 2017, and he was repatriated to Vietnam on 31 October 2017, after serving a prison term for remaining in Hong Kong illegally.

8.  On 23 November 2020, the applicant was arrested by the police, having re-entered Hong Kong illegally. On 7 January 2021, he was convicted of the offences of breach of deportation order, remaining in Hong Kong illegally and theft, and sentenced to 18 months’ imprisonment.

9.  On 29 March 2021, the applicant wrote to the Director requesting to make a subsequent claim for non-refoulement protection. Upon the Director’s request, he provided further information by letter dated 7 May 2021. The applicant’s claim, in gist, is that after his return to Vietnam in 2017, he managed to clear his previous debt with the help of his family and friends. He later obtained another loan for his seafood business. Due to covid-19, he suffered loss in his business and was unable to repay the loan. The creditor, Pham, and his people, who were triad members, assaulted him and threatened to kill him if he did not make repayment. He sustained injuries and was hospitalised. He discharged himself from the hospital and left for Hong Kong in order to avoid Pham and his people.

10.  By his decision dated 28 May 2021, the Director refused to permit the applicant to make the subsequent non-refoulement claim. The Director considered that the applicant’s subsequent claim originated from financial dispute with his creditor, and a similar kind of fear had been assessed in his first claim. When determining the first claim, the Director found that state protection and internal relocation options were reasonably available to the applicant which would negate or reduce any risk of harm to him. The Director did not accept there has been a significant change of circumstances since the first claim was finally determined in 2017, and the change, when taken together with the material previously submitted in support of the first claim, would give the subsequent claim a realistic prospect of success. The Director accordingly refused to process the applicant’s claim.

11.  On 7 December 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Director’s decision of 28 May 2021. He did not put forward any ground for seeking relief.

12.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application for leave to apply for judicial review was accordingly late by more than three months. He did not offer any explanation for the delay.

13.  The Judge heard the application at a hearing held on 8 February 2022. At the hearing, the applicant stated that his creditor’s followers colluded with the police to falsely accuse him of dealing in narcotic substance, as a result of which he could be sentenced to life imprisonment or death penalty. He submitted two documents as evidence of the prosecution against him.

14.  By a Form CALL-1 dated 24 March 2022, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his application. For the reasons he gave in [19], the Judge did not find the documents produced by the applicant authentic or reliable, and rejected the applicant’s assertion that he would be subjected to prosecution. The Judge further held at [21] to [23] as follows:

“21. Section 37ZO (2) requires the applicant to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined. The change, together with the material submitted previously, would give the subsequent claim a realistic prospect of success.

22. The Director has correctly pointed out that there was no evidence that State protection and relocation has changed since the previous determination. There was no significant change of circumstances. The subsequent claim is not substantiated.

23. This court agrees with the decision of the Director dated 28/5/2021. There is no error of fact and law. The decision is reasonable. This court refuses leave for the intended judicial review.”

15.  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.

16.  By a summons filed on 23 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge To dealt with the application on paper. By his decision handed down on 16 September 2022[6], he refused the application.

17.  On 5 October 2022, 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.

18.  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.

19.  The applicant was late by more than two months, which is a significant delay. In the application made to the court below, he claimed that he did not receive the Court’s decision, which was rejected by Deputy High Court Judge To for the reasons he gave at [4] and [5] of his judgment. In the present application, the applicant did not offer any explanation for the delay. In the absence of a satisfactory explanation for the delay, the applicant has to show that his intended appeal enjoys a real prospect of success.

20.  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].

21.  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 primary decision maker afresh as if it is a fresh application for judicial review.

22.  In the affirmation in support of the present application, the applicant stated that he is unrepresented and do not have access to legal advice. He asserted that there is a good ground of appeal, but he did not give any elaboration or particulars.

23.  The applicant’s written submission gives an outline of his claim and the procedural history, and quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[7] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness. It also raises the following arguments:

(1)  The creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people. If the applicant is repatriated, his life will be in danger.

(2)  Internal relocation is not feasible because (i) the applicant will face many difficulties and obstacles, (ii) he does not enjoy good health and is not an active person, (iii) he will be disadvantaged in the labour market, (iv) there is no guarantee he will be able to adapt to the new place and find a job to support himself, and (v) the creditor and his followers have nationwide social network and close connections with corrupt people in the government and the police and can track down the applicant.

(3)  The applicant’s oral evidence to the immigration officer and the Torture Claims Appeal Board is true but they did not accept it, or investigate or take steps to verify it, and they were wholly subjective in their evaluation of his evidence.

(4)  The Board acted in a procedurally unfair manner in dealing with the applicant’s case without properly assessing his credibility.

(5)  The Director did not consider the applicant’s human rights under the Basic Law and various international covenants.

24.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  Section 37ZO(1) and (2) of the immigration Ordinance, Cap. 115 provide that a person who has previously made a non-refoulement claim must not make a subsequent claim unless he provides sufficient evidence in writing to satisfy an immigration officer that (a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(2)  The Director, who is the primary decision maker, had assessed the information provided by the applicant in his previous and subsequent claims, and for the reasons given in his decision dated 28 May 2021 (see [10] above) concluded that the requirements under section 37ZO(2) have not been met.

(3)  The Court will only interfere with the Director’s assessment and decision if it can be demonstrated that his decision is erroneous in law or irrational or there is procedural irregularity or unfairness. However, in his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Director. Further, the Judge, having scrutinised the Director’s decision, concluded that there was no proper basis to disturb it. In the circumstances the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.

(4)  Although the applicant referred to a number of decisions and legal principles in the written submission, he has not shown how they relate to his case.

(5)  In fact, the bulk of the applicant’s submission is irrelevant as it does not engage with the Director’s reasoning in refusing to allow him to make a subsequent claim. The complaints against the Board are also misplaced as the applicant has never made any appeal to the Board.

(6)  We have separately considered the Director’s decision. Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities. We see no proper basis for disturbing the Director’s findings that state protection and internal relocation options are reasonably available to the applicant.

25.  For the above reasons, 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.

26.  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 5 October 2022.