DANG VAN DE AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1089/2021

[2023] HKCFI 2231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1089 OF 2021

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BETWEEN

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D E C I S I O N

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Introduction

1.  This is the 1^st Applicant’s application by summons filed on 20 July 2023 (the “Summons”) seeking leave to appeal the order of this Court dated 17 April 2023 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 20 July 2023 when the Summons was filed, this application was more than two and half months out of time. Leave to appeal out of time is required.

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  The application is more than two and half months late which is substantial in the context of a 14-day period of appeal. In his supporting affirmation, the 1^st Applicant said he was applying for leave to appeal out of time, indicating that he knew he was late but he did not proffer any explanation for his delay in appealing, implying that the delay was not caused by anything out of the ordinary, such as wrong addressing, non or late delivery of the Order, etc. Instead, he asserted in Paragraph 2 of his affirmation that he “[has] been informed by [his] family members that it was dangerous for [him] to return to Vietnam as [he] would be killed, so [he] did not go back eventually.” Obviously, he made a conscious decision not to return to Vietnam after receiving the Order because he was subsequently advised by his family not to return. This confirmed that he received the Order in the normal course of mail and within time to appeal, but he made a conscious decision not to return to Vietnam and not to appeal until it was more than two months out of time. Insofar as this assertion in Paragraph 2 of his affirmation purports to be an explanation for the delay, it is not a reasonable one because the time limits in the rules are meant to be observed and not to be deliberately flouted. There is therefore no reasonable explanation for the delay.

Prospect of success of the intended appeal

5.  Insofar as his assertion in Paragraph 2 of his affirmation serves as a ground of appeal, it is hardly an arguable ground. The essence of the 1^st Applicant’s and his wife’s (the 2^nd Applicant’s) claim for non-refoulement protection is that they will be harmed or killed by his moneylender for being unable to repay his loan owed to the moneylender. The Board found the 1^st and 2^nd Applicants incredible and rejected their evidence. The Board did not accept that the 1^st Applicant was indebted to the moneylender, had operated a shrimp business, had borrowed from the moneylender and had been assaulted by him. The 1^st Applicant has failed to establish the factual basis of his claim: see Paragraphs 12 to 15 of the Form CALL-1. This is a finding of fact exclusively open to the Board to make on its finding of the 1^st and 2^nd Applicants’ credibility, which the Court in an application for judicial review will not intervene save for errors of law, procedural unfairness and irrationality in the decision: see Nupur Mst v Director of Immigration[2]. For reasons as explained in Paragraph 18 of the Form CALL-1, this Court could detect no such errors or defects in the Board’s Decision and hence refused the 1^st Applicant’s leave application. Thus, insofar as the 1^st Applicant is relying on this assertion as his ground of appeal, he is seeking to challenge the finding of fact by the Board which is not open to him in an application for judicial review. He has not advanced any arguable ground challenging this Court’s finding that the Board has not erred in law, committed procedural unfairness or is irrational in its Decision. The 1^st Applicant has advanced no arguable grounds of appeal and has no explanation for the delay in appealing. His intended appeal has no prospect of success. For completeness, the 2^nd Applicant has withdrawn her leave application.

Prejudice to the respondent

6.  If this application is allowed, the prejudice to the proposed respondent and to public administration is obvious. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect genuine victims of persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

7.  For the above reasons, the application for extension of time to appeal is refused.