RE TRAN VAN TIEN AND OTHERS

CAMP 346/2022, [2024] HKCA 357

On Appeal From [2019] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 346 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1105 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.  On 14 September 2022, the applicants took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 14 July 2022 ([2022] HKCFI 1930)  (“the EOT Decision”)  refusing to grant them an extension of time to appeal against an earlier order of the Judge dated 27 December 2019 ([2019] HKCFI 3138)  (“the Leave Decision”)  refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 18 April 2019, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  20 January 2017 rejecting the applicants’ non-refoulement claim.

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

BACKGROUND

4.  The applicants are nationals of Vietnam.  The 3^rd and 4^th applicants are the children of the 1^st applicant (“the Father”)  and the 2^nd applicant (“the Mother”).  The Father, the Mother and the 3^rd applicant entered Hong Kong illegally on 23 November 2014 and surrendered themselves to the Immigration Department on 6 January 2015.  The 4^th applicant entered Hong Kong illegally on 25 June 2015.  The applicants raised a non-refoulement claim on 6 January 2015[1] and 21 August 2015[2], on the same basis that, if refouled, they would be harmed and killed by their creditor.  Details of the applicants’ claim have been summarised by the Judge at [3] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 20 January 2017 (“the Director’s Decision”), the Director rejected the applicants’ non-refoulement claim on all applicable grounds including risk of torture[3], BOR2 risk[4], BOR3 risk[5], and persecution risk[6].

6.  The applicants appealed the Director’s Decision to the Board on 2 February 2017.  On 18 April 2019, the Board dismissed the applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In essence, the Board found that the evidence of the Father and the Mother were unreliable and that both of them were dishonest.  The Board further noted their delay in raising their non-refoulement claims and that they had sneaked into Hong Kong illegally via boats.  The Board also noted that the applicants did not sustain significant injury and did not try to escape the creditor by moving elsewhere in Vietnam but instead chose to travel so far to Hong Kong.  After considering all the evidence, the Board considered that their claim failed on all applicable grounds and dismissed their appeal.

7.  On 24 April 2019, the applicants filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86.  In their supporting affirmation, they only alleged that their lives would be under threat owing to their failure to repay their debts.

8.  On 11 November 2019, the applicants filed an affirmation requesting to cancel their application for leave to apply for judicial review as their problems were solved in Vietnam and they wished to return to Vietnam.  By a written consent dated 24 November 2019, they further confirmed that the Court may deal with and dismiss their joint application on paper.

THE JUDGE’S DECISION

9.  On 27 December 2019, the Judge acceded to their application and dismissed their application for leave to apply for judicial review.

10.  Under Order 53, rule 3(4)  of the RHC, the applicants 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 applicants within the 14-day period.

11.  On 7 June 2022, the applicants applied by summons for an extension of time to appeal against the Leave Decision.  By that time, they were almost late for two years and five months with their intended appeal.

12.  On 14 July 2022, the Judge refused the applicants’ application for extension of time to appeal.  As the Judge dismissed their application for leave to apply for judicial review on the basis of their voluntary decision to withdraw their joint application, the applicants had no valid ground to say that the Judge had erred in the Leave Decision.  As there was no realistic prospect of success in their appeal, the Judge refused to extend time for them to appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation (attaching a “Statement”)  taken out on 14 September 2022 in the Court of Appeal, the applicants applied for leave to appeal against the EOT Decision.  In their summons, they requested for leave to advance a new sole ground of appeal but failed to give any specific particulars as to this alleged ground.  In their supporting affirmation, they alleged that the Leave Decision was reached unfairly without allowing them an opportunity to clarify their case and country situation.

14.  In their written statement, they stated that they applied to withdraw their appeal in November 2019 but then found out that their problems in Vietnam had not really been resolved and that they could not return safely.  As such they continued to file an extension of the appeal and wished to continue with the appeal to seek refuge in Hong Kong.  They also claimed that the Immigration Department failed to consider their human rights under various legislations but failed to elaborate or give any further particulars supporting their assertions.

DISCUSSION

15.  Following the approach 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.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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 applicants.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, a delay of almost two years and five months is extremely substantial and inordinate.  The applicants did not give any good reason for their delay.

21.  More importantly, the present application is entirely misconceived and there is plainly no merit in the applicants’ intended appeal.

22.  The Judge dismissed their application for leave to apply for judicial review pursuant to their voluntary request for withdrawal of their application and their assertions that their problems were solved in Vietnam and it would be safe for them to go back.  Their complaint that the Judge failed to give them the opportunity to clarify their case and home country situation has no substance and must fail.  The applicants also failed to demonstrate why their application for leave to apply for judicial review should not be dismissed given their stance.  There was also nothing irregular for the Judge to dismiss their application in view of their request for withdrawal: see Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19], Re Nguyen Thi Lo [2023] HKCA 1141 at [11] and Re Ferrolino Jasmin Puno [2023] HKCA 1073 at [14] - [17].  On this basis alone, the Father and Mother’s appeal has no merits.

23.  As to the 3^rd and 4^th applicant’s appeal, the court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at [30] - [33]:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

24.  The 3^rd and 4^th applicants’ claim was premised fundamentally on the claim of their parents.  Given that the Board found on the evidence that both the Father and Mother were dishonest witness and their story unreliable, there was no factual premise to support the 3^rd and 4^th applicants’ claim.  In any event, we do not see any material that might give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 3^rd and 4^th applicants but had not been advanced to the Board or considered by it because of the lack of legal representation on their behalf before the Board.

25.  Accordingly, there is no prospect of success in the applicants’ intended appeal.  It is thus futile to grant the applicants any extension of time to appeal against the Leave Decision.

DISPOSITION

26.  The application for extension of time to appeal is refused, and the applicants’ summons taken out on 14 September 2022 is dismissed.

27.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and 4^th applicants’ application a nullity.