RE TRINH THE CONG

CAMP 40/2023, [2024] HKCA 226

On Appeal From [2022] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 40 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2471 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 1 February 2023, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 14 July 2022.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 1970)  (“the EOT Decision”)  against his earlier order dated 2 March 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 578)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 1 November 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 23 November 2016, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 14 November 2014.  On 17 November 2014, he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor Dung because he had defaulted in his loan repayment.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.  On 5 December 2016, the applicant appealed against the Director’s Decision to the Board.  On 2 October 2018, he attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed his appeal.  Having considered his evidence, the Board noted that it was full of inconsistencies and discrepancies.  The Board did not find him credible.  The Board thus considered that the applicant failed to prove even the primary facts of his case and failed to substantiate his claim on all applicable grounds.  The Board also considered that internal relocation was a viable option and state protection would be available to the applicant.

The Leave Decision

7.  On 6 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in his affirmation that he could not go back to Vietnam owing to his default in loan repayment and that his life would be insecure.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [18] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

15. The applicant does not have any valid ground to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 13 June 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was almost three months late with his intended appeal.  In his summons and supporting affirmation, he alleged that as he did not speak English or Cantonese he did not know how to update his address to the Court.  He further claimed he did not receive the Court’s letter and needed to ask his friends for help.

11.  By the EOT Decision, the Deputy Judge did not accept that the applicant had a good reason for the very substantial delay.  He had also given no valid ground to challenge the Board’s Decision or to show that the Deputy Judge had erred.  Accordingly, the Deputy Judge held that the applicant had no realistic prospect of success in his intended judicial review and refused his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation (attaching a written statement)  all filed on 1 February 2023, the applicant applied for leave to appeal against the EOT Decision.  In the summons and supporting affirmation, the applicant only stated that he understood he had a good ground of appeal but failed to specify what the said ground was.  In his supporting affirmation, he further stated that the Court’s decisions were reached unfairly without allowing him an opportunity to clarify his case and his Country’s situation.  In his written statement, he alleged that his life would be seriously threatened if refouled and that internal relocation would not be feasible as he was not an active person.  He further alleged that it would be dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with the corrupt people in the government and police apparatus. The applicant also contended that the Immigration Department failed to consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 1 February 2023, the applicant did not lodge any written submissions.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of almost three months was substantial and we agree with the Deputy Judge that the applicant had failed to give any good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  At the outset, the arguments raised in his summons, supporting affirmation and statement are new and were not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  Although he alleged he had a good ground of appeal, he did not specify what the said ground was.  Moreover, those complaints were directed mainly at the decisions of the Director and the Board and did not point out with particulars how the Deputy Judge had erred in the Leave Decision.  They therefore do not constitute proper grounds of appeal. The appeal must fail on this basis alone.

19.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 1 February 2023 is dismissed.