RE BUI PHU LE

CAMP 158/2021

[2021] HKCA 1565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 158 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2401 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 27 July 2020[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 23 October 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 25 August 2016 and 28 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 3 May 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 27 July 2020.

Background

3.  The applicant is a Vietnamese national. He entered Hong Kong illegally and was arrested by the police on 13 March 2016. He was referred to the Immigration Department on 14 March 2016. He raised his non-refoulement claim on 16 March 2016.

4.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by three loan sharks, for having defaulted on his loans. The factual background of his claim was set out at [28] to [40] of the Board’s decision.

5.  By two notices of decision dated 25 August 2016 and 28 July 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 9 October 2017, during which the applicant answered questions from the Board. The Board concluded it could not be satisfied as to the veracity of the applicant’s claim to have borrowed any money from moneylenders, due to material inconsistencies in core aspects of his evidence, in particular as to the amounts of each loan and the amount of interest, as well as the number of incidents in which he was allegedly assaulted and who had assaulted him on each occasion. As a result, the Board did not accept that the applicant had borrowed any money from moneylenders.

7.  Accordingly the Board found that there was no real risk of harm in the event of refoulement. The Board dismissed the applicant’s appeal in its written decision dated 23 October 2018.

The Judge’s decisions in the court below

8.  On 30 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision. In his supporting affirmation, the applicant raised a number of grounds for judicial review, summarized by the Judge at [11] of the Form CALL-1 as follows:

“ 11. In his affirmation in support of his application, he relied upon the grounds below.

1. The Board selectively accepted the evidence: in relation to the loans and interests, the Board placed too much weight on the details.

2. The Board placed weight on the unimportant evidence, such as the way he reported the matter to police. This approach was unreasonable.

3. The Board discredited all the evidence because of the minor discrepancies, which was unfair to him.

4. He had a tumor in his head and he might be mentally ill. He required medical treatment.”

9.  Following a hearing on 12 September 2019 at which the applicant failed to appear, on 27 July 2020 the Judge refused to grant leave for judicial review. The reasons for refusing leave were set out in [15]-[17] of the Form CALL-1 as follows:

“ 15. The Court of Appeal in Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16. The Board had set out the reasons in its Decision why it found his evidence not credible. It was entitled to form its own views after assessment of the evidence before it. When it said that there were numerous inconsistencies that the applicant was unable to give satisfactory explanation, it would not be unreasonable for the Board to have come to such conclusions.

17. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

10.  More than 7 months later, on 11 March 2021, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, he explained that he did not receive any correspondence from the court regarding the hearing date, because he was in the custody of the Correctional Services Department. He also stated that as he was unrepresented, he was unaware of the 14-day time limit for appealing. He complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

11.  In his decision dated 3 May 2021[6] based on consideration of the documents only, the Judge considered that the applicant was unable to show that the intended appeal had any reasonable prospect of success. Accordingly the Judge dismissed the summons.

The renewed application before this Court

12.  On 12 May 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 27 July 2020 refusing leave for judicial review. In his supporting affirmation, he stated that that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country. He also stated that he would like to appeal out of time because he had neither the appropriate means, nor did he receive the Judge’s decision on time because he was in detention.

13.  The applicant lodged his written submissions on 24 June 2021. Those submissions consist almost entirely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case. However, paragraph (4) of his submissions stated that the Board acted in a procedurally unfair manner by failing to properly assess his credibility, but the applicant did not provide any details or particulars as to how the Board failed to properly assess his credibility or as to any specific errors by the Judge.

Legal principles

14.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless an extension of time is granted. In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge: Re Saqlain Muhammad [2018] HKCA 346.

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

17.  In the present case, the applicant was late by over 7 months in seeking to appeal from the Judge’s decision.

18.  Leaving aside the question whether there was a good excuse for the delay, what is fatal to the present application is that the applicant has wholly failed to show that the intended appeal has any reasonable prospect of success.

19.  As mentioned above, the applicant did not set out any proper grounds of appeal in his summons or in his submissions. Nor did he provide any particulars in support of his arguments or as to any specific errors in the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

20.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds that point to any error by the Judge, the appeal should be dismissed.

21.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding on the veracity of his claim. Thus the Board found that there was no real risk of harm in the event of refoulement. Such findings open to the Board based on the evidence it received. The court will not interfere with such assessments unless they are vitiated on public law grounds. As the Judge explained, the applicant failed to make out any such grounds.

22.  Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave to apply for judicial review.

23.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend time only for the applicant to lodge what would be a hopeless appeal. The summons dated 12 May 2021 is accordingly dismissed.