LUU VAN HOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 35/2023, [2023] HKCA 653

On appeal from [2022] HKCFI 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 35 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1075 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 29 April 2022, Deputy High Court Judge K W Lung (“the Judge”) dismissed the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 17 November 2022, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal had ended on 13 May 2022. On 5 January 2023, the Judge dismissed the applicant’s summons for extension of time to appeal against the said decision[2].

3.  On 30 January 2023, the applicant filed the present summons in the Court of Appeal essentially to challenge the refusal of time extension by the Judge. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for extension of time to appeal.

4.  The applicant is a national of Vietnam. He entered Hong Kong illegally and surrendered to the police on 4 November 2014. On 5 November 2014, he lodged a non-refoulement claim with the Immigration Department. His claim was based on his fear of being harmed or killed by his creditor (or his gangster), who was a loan shark and had a triad background, due to his inability to repay his loan. The details of the applicant’s claim were set out in §7 of the decision of the Director of Immigration (“the Director”), which need not be repeated here.

5.  By his decision dated 27 October 2016, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  On 7 November 2016, the applicant appealed the Director’s decision to the Board. He attended a hearing before the Board on 23 January 2019.

7.  By its decision dated 22 March 2019, the Board dismissed the applicant’s appeal. In essence, the Board found that the applicant’s claim was not credible, having regard to its inherent inconsistencies and the contradictions between the evidence he gave at the hearing and the information he provided in his non-refoulement claim form. The Board did not accept that he had been threatened or assaulted. The Board further found that even if his claim was to be believed, the risk of harm the applicant may face upon his return would be low having regard to the low intensity, low frequency and short duration of the alleged assault. Such a risk would be further reduced or negated by the availability of state protection and internal relocation options. The Board concluded that the claim failed on all applicable grounds and dismissed his appeal.

8.  On 23 April 2019, the applicant filed a Form 86 and an affirmation for leave to apply for judicial review against the decision of the Board. He put forward the following four grounds in his affirmation:

(a)  First, the Board took into account irrelevant considerations when assessing his claim. In particular, the applicant contended that the Board had unreasonably focused on irrelevant and insignificant details of his case and found against him when he was unable to recollect those details accurately;

(b)  Second, the Board failed to examine the applicant’s injury before concluding the assault that the applicant faced was not serious and that the risk of harm he may face upon his return to Vietnam was low;

(c)  Third, the Board failed to observe that the Vietnamese government was corrupt and that the Vietnamese government would not be able to protect the applicant upon his return;

(d)  Fourth, the Board failed to properly assess BOR 2 risk and BOR 3 risk but simply referred to and relied upon the facts found in the earlier parts of the Board’s decision in relation to the assessment of the applicant’s claim and the availability of state protection, which findings the applicant contended were incorrect for the reasons set out in his first and third grounds mentioned above.

9.  On 19 September 2019, the applicant wrote a letter to the court seeking to withdraw his application for leave to apply for judicial review. In that letter, he stated that his persecution in Vietnam had been solved and that he had to return to Vietnam to look after his grandparents. He therefore decided to withdraw his application for leave to apply for judicial review.

10.  On 29 April 2022, the Judge acceded to the applicant’s request to withdraw his application and dismissed the application for leave to apply for judicial review.

11.  Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) provides that an applicant may appeal to the Court of Appeal against a refusal of leave to apply for judicial review within 14 days after it was made. The 14-day period for the applicant to appeal the Judge’s decision expired on 13 May 2022.

12.  About 6 months later, by a summons filed on 17 November 2022, the applicant applied for an extension of time to appeal the Judge’s decision. In the supporting affirmation filed on 17 November 2022, the applicant claimed that he received “fresh information from his family members that [his] issue is still on going and [he has] serious threats in [his] home country”. As “the matter is still in place and [his] life is in danger in his home country”, he would like to continue his case.

13.  The Judge dealt with the application on the papers, and by his decision dated 5 January 2023[7], the Judge refused the application on the basis that the applicant’s application for leave to apply for judicial review had been dismissed upon his application for withdrawal and that the applicant cannot appeal against the court’s decision.

The present summons and grounds of appeal

14.  On 30 January 2023, the applicant filed the present summons together with his supporting affirmation essentially to challenge the refusal of time extension by the Judge. As stated in §3 above, this shall be treated as a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

15.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation both filed on 30 January 2023. In his affirmation, he merely stated that there is a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and he requested the Court to exercise its discretion to allow him to appeal out of time.

16.  On 30 January 2023, the Registrar of Civil Appeals directed that the applicant shall lodge with the court his written submissions in support of his present summons on or before 13 February 2023. The applicant lodged his written submissions of 8 pages in Vietnamese on 3 February 2023. He did not provide a translation in either English or Chinese.

17.  The applicant apparently intended to make detailed submissions in support of his application, in light of the length of his written submissions. Although he would appear to be able to write in English to a limited extent (his summons and short supporting affirmation were both written in English), it may well be beyond his capability to make detailed submissions in English. It was stated in his authorisation letter dated 19 January 2023 that he is detained in the Castle Peak Bay Immigration Centre, where he may have limited access to translation services. In such circumstances, it is appropriate that the Court should obtain an English translation of his submissions lodged on 3 February 2023. This was provided to us in April 2023 by a Vietnamese translator engaged by the Court Language Section.

18.  In his submissions in February 2023, the applicant repeated the incidents of having been assaulted and threatened by the loan shark in Vietnam. He claimed he had divorced the woman he married in Hong Kong and married another woman in June 2019, with whom he has a son born in February 2019. He asked to be allowed to remain in Hong Kong for these reasons: his parents told him the loan shark still came to look for him and threatened to kill him; his wife has been suffering from depression after the birth of his son and they have no relatives in Hong Kong to rely on or help to look after their son.

Analysis and disposition

19.  In considering whether to extend time for appealing against a decision refusing 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.

20.  The applicant was around 6 months late when he made the application for extension of time on 17 November 2022. The delay is substantial.

21.  In his affirmation filed on 17 November 2022 in support of his application to the Judge for extension of time, the applicant stated that he received “fresh information” from his family members that “[his] issue is still on going and [he has] serious threats in [his] home country”. However, he did not explain when he received such information and whether this was the reason why he failed to file his appeal on time.

22.  In any event, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

23.  In his present summons and supporting affirmation, the applicant has failed to put forward any reasonably arguable grounds of appeal. As mentioned above, he only asserted in his affirmation that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” but did not give any details or elaborate on it. This is hardly a proper ground of appeal.

24.  Nor are there any reasonably arguable grounds of appeal in his recent submissions. We note also that his letter to the court seeking to withdraw his application for leave to apply for judicial review was dated 19 September 2019, 6 months after the birth of his son when his wife was allegedly suffering from depression.  

25.  In our view, the intended appeal has no merits for the following reasons. First, the applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application to withdraw, whereupon there was nothing outstanding in the action, and the Judge correctly concluded the action by ordering a dismissal of the application instead of leaving the action at large (Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1)). There is no basis to contend that the Judge had in any way fallen into error in dismissing his application for leave to apply for judicial review.

26.  Second, it is also not open to the applicant to criticise the Judge for not considering any of his grounds[8] in support of his application for leave to apply for judicial review (as he stated in his affirmation that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”). Given that the applicant had applied to withdraw his application for leave to apply for judicial review, it was not necessary for the Judge to adjudicate on the merits of that application (Re Manik Md Mahamudun Nabi at §19(2)).

27.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the Judge’s decision of 29 April 2022 and dismiss the summons filed on 30 January 2023.