PHAM VAN LUAN v. TORTURE CLAIMS APPEAL BOARD

CAMP 376 /2021

[2022] HKCA 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 376 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1446 OF 2018)

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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):

1.  On 30 April 2021, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply 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 2 September 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as the applicant has not provided any good reason for the delay and there is no merit in the intended judicial review^[2].

3.  On 8 September 2021, the applicant filed a renewed application for extension of time to appeal and for leave to adduce new ground of appeal with the Court of Appeal.

4.  The applicant is a national of Vietnam.  He is 33 years old.  He alleged that he entered Hong Kong illegally on 27 April 2016.  On 28 April 2016, he was arrested by the Immigration Department and lodged a non-refoulement claim. His claim was made on the basis that he will be harmed or killed by his creditor if he returns to Vietnam because he is unable to repay the debt.

5.  By a Notice of Decision dated 28 April 2017, the Director of Immigration (“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.  The applicant appealed against the Director’s decision to the Board.  He was absent from the hearing scheduled before the Board on 23 November 2017. The secretariat of the Board tried to contact the applicant by phone but could not reach him.  The secretariat then wrote to the applicant requesting him to provide an explanation for his absence but the applicant did not reply.  Hence, the Board decided to consider his appeal on paper.  Having considered the available evidence, the Board did not accept that the applicant would face a real risk of harm or danger to life if he is refouled to Vietnam.  The Board considered there is no evidence to suggest that the alleged pain and suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Board also assessed that the feared ill-treatment as alleged does not reach the required minimum level of severity.  Thus, the Board decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 5 January 2018.

The judge’s decision

7.  On 23 July 2018, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decision of the Board, well outside the three-month period stipulated under Order 53 rule 4(a) of the Rules of the High Court (Cap 4).  He put forward the following grounds for his intended challenge in his affirmation:

(1)    it was unreasonable and unfair for the Board not to schedule another oral hearing for his appeal after he failed to attend the first hearing as he did not receive the notice in the mail;

(2)    it was unreasonable for the Board to assess the risk of the applicant being harmed or killed by his creditor as low when the applicant was absent from the hearing and was not given the chance to answer the Board’s queries;

(3)     the Board unreasonably relied on those country of origin information (“COI”) which did not show the true situation in Vietnam especially as to the corruptions and inefficiencies of its government; and

(4)    the applicant now has small children in Hong Kong including a daughter that has serious medical condition which requires medical care and treatment in Hong Kong.  

8.  DHCJ Bruno Chan dealt with the application on paper.  The judge considered that the applicant failed to provide any good or valid reason for his substantial delay in taking out the leave application.  As to the merits of the leave application, the judge noticed that the applicant did not explain what further facts or evidence he would have put before the Board at the hearing which could advance his claim.  The judge assessed there is no evidence to suggest that the applicant has suffered any real prejudice from the lack of an oral hearing for his appeal before the Board.  The judge also found that the applicant’s claimed fear of harm would not assist his case further in light of the availability of state protection and reasonable internal relocation. Besides, the applicant failed to provide any particulars or specifics as to which of the COI relied upon by the Board or the Director did not show the true situation in Vietnam and he did not produce any COI that could advance his case.  In addition, the judge held that the fact that the applicant needs to remain in Hong Kong to look after his children is irrelevant to his leave application and not an arguable ground for his intended judicial review.  Thus, the judge refused to grant extension of time and dismissed the leave application on 30 April 2021.

Grounds of appeal

9.  The applicant stated in his affirmation that the judge reached his decision unfairly without allowing him an opportunity to clarify his case and situation in his country.

10.  He filed a statement on 8 September 2021 setting out his written submissions which may be summarized as follows:

(1)     It was unsatisfactory that the court ruled he had no chance of success in reviewing the Board’s decision.

(2)     If he returns to Vietnam, his life will be seriously threatened and he will probably be killed as the creditors and gangsters in Vietnam are cruel and violent.

(3)     The Director did not consider his human rights under Basic Law, Hong Kong Human Rights and Democracy Act, International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

11.  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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 30 April 2021.  The applicant took out a summons in the court below on 28 May 2021.  He was late for two weeks.  He explained that he could not file the appeal within time as he did not know there was a deadline and did not understand English.  He needed to seek assistance from his friend.  He also asserted that he did not receive the decision on time.

13.  The decision of DHCJ Bruno Chan was sent to the applicant’s address by post on 30 April 2021.  The applicant did not tell when he actually received the decision and did not provide any proof.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).  Besides, ignorance of the rule is not an acceptable reason for non-compliance.  Hence, the applicant’s explanations are not acceptable.  In these circumstances, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merit of the intended appeal, the court 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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  Pursuant to Order 53 rule 3(3) of the Rules of the High Court, the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  The applicant did not request for an oral hearing in his Form 86.  Thus, the judge was entitled to consider his application on paper.

17.  The judge has sufficiently considered the applicant’s grounds and given detailed reasons for the decision.  The applicant’s submissions against the judge are just bare assertions without any particulars or elaboration.  He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to extend time to appeal against the judge’s decision of 30 April 2021 and dismiss the application for extension of time to appeal filed on 8 September 2021.