RE NGUYEN TIEN THUAN

CAMP 227/2022, [2024] HKCA 268

On Appeal From [2022] HKCFI 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 227 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 783 OF 2019)

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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 4 July 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge To (“DHCJ To”) dated 24 June 2022 ([2022] HKCFI 1858) (“the EOT Decision”). By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal against the order made by Deputy High Court Judge Li (“DHCJ Li”) dated 5 January 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 20) (“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 7 March 2019 (“the Board’s Decision”) refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 21 July 2017 rejecting 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 20 January 2016 and surrendered to the Immigration Department on the same day.  He was released on recognisance on 10 May 2017.  By way of written representations dated 23 March 2017, 2 April 2017 and 4 April 2017, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor who was a gang member for failing to repay his loan.  He further claimed that he would be harmed by the Vietnamese government upon refoulement as the Vietnamese authorities had accused him of being a Chinese spy since 1987 and also he was involved in a land dispute with the Vietnamese government in 2012.  Factual details of the applicant’s claim were summarised by DHCJ Li at [2] ‑ [10] 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 BOR2 risk[1], BOR3 risk^[2] and persecution risk^[3] and torture risk^[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  The Board heard the appeal on 21 December 2018.  After considering the evidence, the Board considered that the applicant’s creditor only attacked him once in 2014 without causing serious injuries to him and that his creditor had no intention to kill or seriously harm the applicant, but only to press him to repay the loan.  The Board also considered that the monetary dispute between the applicant and his creditor was private in nature without any state involvement.  Further, the Board did not accept that the applicant would remain as a target of the Vietnamese government. The Board hence held that the applicant would not face any real risk of harm from his creditor, the police or the Vietnamese authorities if he were to return to Vietnam.  In any event, after considering the Country of Origin information (“COI”), the Board also found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board found that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal on 7 March 2019.

The Leave Decision

7.  On 20 March 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in his Form 86.  In his supporting affirmation, he stated the following grounds (referred to as Grounds (1) to (3) below respectively):

(1)  The Board erred in making subjective findings

(a)  at [69] and [70] of the Board’s Decision, that the applicant did not face any risk of harm from the Vietnamese authorities on the basis that he was not located, interrogated or arrested in Vietnam between 2010 and 2016, and

(b)  at [56] and [57] of the Board’s Decision, that he did not face any real risk of harm from his creditor on the basis that he was not seriously injured by his creditor;

(2)  The Board erred, at [84] and [95] of the Board’s Decision, in relying on incorrect or unreliable COI in finding on the availability of state protection in Vietnam; and

(3)  The Board erred, at [102] and [103] of the Board’s Decision, in rejecting his claim on the ground of BOR2 risk simply because he did not submit any additional evidence to the Board.

8.  On 22 November 2021, the applicant lodged a letter reiterating the factual basis of his claim and his situation since he entered Hong Kong.  In that letter, he also prayed for help from the court.

9.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.  By the Leave Decision, DHCJ Li dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [14] ‑ [16] of the Leave Decision in Chinese.  In gist, DHCJ Li considered:

(1)  Regarding Ground (1), that the Board was entitled to assess the applicant’s claim based on the available evidence to find that there was no real risk of harm faced by the applicant without the need to exclude all the possibilities.  It was reasonable for the Board to hold that the injury sustained by the applicant from an incident of assault inflicted by his creditor and the associates of the creditor had not attained the level of minimum severity upon finding that he was only assaulted once with sticks and swords and was treated only with painkillers.

(2)  Regarding Ground (2), the COI relied upon by the Board was credible and reliable and the Board rightly considered the legal principle set out in Horvath v Secretary of State for the Home Department [2000] UKHL 37 in assessing the availability of state protection in Vietnam.

(3)  Regarding Ground (3), the Board rejected the applicant’s claim under the BOR2 ground not because of the applicant’s failure to provide any additional evidence, but based on the available evidence when the applicant did not provide any additional evidence.

11.  Further, DHCJ Li did not accept that the applicant’s letter dated 22 November 2021 could assist him in his claim.  Accordingly, DHCJ Li considered that there was nothing amiss in the Board’s decision and dismissed the applicant’s application for leave to apply for judicial review.

The EOT Decision

12.  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.

13.  On 28 April 2022, the applicant filed a summons (“EOT Summons”) together with a supporting affidavit for extension of time to appeal against the Leave Decision.  By then, he was over three months late with his intended appeal.  In his supporting affidavit, he merely stated that it was life-threatening and not safe for him to return to Vietnam.

14.  As the applicant did not give any explanation for the delay in his EOT Summons or supporting affidavit, the court directed him by letter dated 16 May 2022 to file a statement by 30 May 2022 setting out, among other things, his explanation for the delay, details relating to his receipt of the Leave Decision, and grounds of the proposed appeal.  He was also advised that his EOT Summons would be determined on paper after 21 days of the directions, regardless of whether the directions given had been complied with.

15.  By a letter dated 24 May 2022 lodged by the applicant with the court, he asserted that he had not been given a Recognizance Form 8 by the Immigration Department until 21 February 2022.  He also asserted in the letter that he chose to be self-isolated at home after having contacted many COVID-19 patients and that he was not aware the court would reopen on 12 April 2022 after its closure on 7 March 2022, which therefore caused the delay in filing his appeal.

16.  By the EOT Decision, DHCJ To considered a delay of over three months as very substantial and did not accept the applicant had provided any valid explanation for the delay.  As the applicant had no arguable grounds of appeal and his intended appeal has no prospect of success, DHCJ To refused his application for extension of time to appeal.

The Present Application

17.  By a summons and a supporting affirmation both filed on 4 July 2022, the applicant applied for leave to appeal against the EOT Decision.  In the summons, the applicant asked for leave to advance a new sole ground of appeal without giving any particulars.

18.  In his supporting affirmation, he contended that the decision made by the High Court was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country.  He also asserted that the merits of this ground of appeal constitute sufficient reason to justify the court to exercise its discretion to allow this appeal out of time.

19.  In a “statement” lodged together with his summons and supporting affirmation, the applicant repeated his assertions in his letter dated 24 May 2022 as earlier mentioned.  He further complained that both the Director’s Decision and the Board’s Decision were reached subjectively without proper evaluation of his evidence.  He repeated that his life was threatened in Vietnam and contended that it was completely impossible to gather evidence to substantiate his claim as he was not able to do so given his situation at that time and also, it would be against the whole regime of the Vietnam to do so.  In both his supporting affirmation and the statement, he asserted that the Immigration Department did not 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.

20.  Contrary to the directions made by the Registrar of Civil Appeals on 4 July 2022, the applicant failed to lodge any written submissions.

Discussion

21.  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.

22.  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].

23.  We consider that the applicant’s delay of over three month as substantial and we agree with DHCJ To that the applicant 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].

24.  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 DHCJ Li 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].

25.  At the outset, his complaints are mainly directed at the Board and the Director.  Further, all his complaints are all general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal: Re Farrukh Zaib, supra, at [28].  The appeal must fail on this basis alone.

26.  His complaint that the decision of the High Court was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country simply cannot stand.  DHCJ Li decided to consider his leave application on paper as the applicant did not request for any oral hearing.  In reaching the Leave Decision, DHCJ Li took into account, among other things, the applicant’s letter dated 22 November 2021 which was lodged without first obtaining leave from the court.  Accordingly, it was appropriate for DHCJ Li to consider and dismiss his leave application on paper.  Even in his application for extension of time before DHCJ To, he was directed to provide further information to substantiate his application and subsequently, he filed a statement in accordance with the directions given.  His application for extension of time was determined on paper by DHCJ To accordingly.  He already had ample opportunities to present and clarify his case before the court at different stages of the proceedings.  In the premises, his complaint in this respect must fail.

27.  The applicant’s request for leave to advance “a new sole ground of appeal” must also be rejected, as he did not even specify what this “new sole ground of appeal” was.  In any event, it is well established that this court will not generally entertain new arguments which are fact‑and‑evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].

28.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  We agree with DHCJ To in the Leave Decision that that Board was entitled to consider the evidence and COI available to the Board in reaching its own findings of facts and assessing the applicant’s claim.  As correctly noted by DHCJ To, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board and we see no basis to interfere with the Leave Decision.

29.  For the above reasons, the intended appeal 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 4 July 2022 is dismissed.