RE DO MANH HAU

CAMP 129/2021

[2021] HKCA 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 129 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1781 OF 2018)

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J U D G M E N T

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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 7 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 18 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 8 November 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 20 April 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 7 July 2020.

Background

3.  The applicant is a Vietnamese national.  He was arrested by the police in Hong Kong on 11 April 2017 and was referred to the Immigration Department on 12 April 2017.  He lodged a non‑refoulement claim on 24 April 2017. 

4.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by a creditor, because in March 2017 he defaulted on the repayment instalment for a loan borrowed in 2014.  The factual background of the claim was summarized at [6] to [13] of the Board’s decision.

5.  By notice of decision on 8 November 2017, 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 decision.  The Board decided the appeal without an oral hearing.  Based on the applicant’s evidence, the Board found that the applicant had sustained only minor injuries from the triad attacks said to have been organised by the creditor but had not suffered any severe harm.  The Board considered that the creditor simply wanted to put pressure on the applicant to repay the loan rather than to cause him severe harm or kill him.  Therefore, the Board found there was no real risk of a sufficient level of harm in the event of refoulement.  The Board also found that relocation within Vietnam was viable for the applicant.  Thus the Board dismissed the appeal in its decision dated 18 July 2018.

The Judge’s decisions in the court below

7.  On 30 August 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the “Director’s decision” dated 22 August 2018.  In his supporting affirmation, the applicant merely stated that the authorities inappropriately and unfairly disposed of his non‑refoulement claim. 

8.  The Judge held a hearing of the application on 31 December 2019 and asked the applicant to attend but he did not appear.  Following consideration of the documents, on 7 July 2020 the Judge refused to grant leave for judicial review.  As there was no decision by the Director on 22 August 2018, it appears that the Judge treated the application as one directed against the Board’s appeal decision dated 18 July 2018.  The reasons for the refusal were set out in [14]‑[16] of the Form CALL‑1 as follows:

“ 14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.

15. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

9.  Almost 7 months later, on 1 February 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 reiterated the factual basis of his non‑refoulement claim, but did not explain the reason for his delay in bringing an appeal or specify any grounds of appeal.

10.  The Judge determined the application without an oral hearing.  In his decision dated 20 April 2021,[6] the Judge did not see any prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

11.  On 27 April 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 7 July 2020 refusing leave for judicial review.  In his supporting affirmation, he again simply reiterated the factual basis of his claim in one short paragraph, but did not either explain the reason for his delay in bringing an appeal or set out any proposed grounds of appeal.

12.  The applicant lodged written submissions for his application on 7 June 2021.  In those submissions, he reiterated the factual background of his claim, and stated that he knew that his creditor was still seeking to locate him.  However, he still did not put forward any grounds of appeal or any arguments as to why he should be granted leave to appeal out of time or why his intended appeal should succeed.

Legal principles

13.  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.

14.  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 real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

15.  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

16.  In the present case, the applicant’s intended appeal was late by nearly 7 months.  The delay is substantial, though in rejecting the application for leave to appeal out of time, the Judge focused on the merits of the intended appeal.

17.  As explained above, the crucial factor is whether the intended appeal has any real prospect of success.

18.  We have already mentioned that the applicant has not raised any grounds of appeal or any arguments as to why he should be granted leave to appeal out of time or why his intended appeal should succeed. For this reason alone, the appeal should be dismissed.

19.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its finding that he had not suffered any severe harm and that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  These findings are open to the Board on the materials before it.  The court cannot interfere with such assessments unless they are vitiated on public law grounds.  No such ground has been identified by the applicant; nor can we discern any on the materials available.

20.  Accordingly we think that there is no reasonably arguable case for judicial review of the Board’s decision.  The Judge was right to refuse leave to apply for judicial review. 

21.  For these reasons, we do not see any prospect of success at all in the intended appeal.  It would be futile to extend time only for an appeal to be brought which would be doomed to fail.  The summons dated 27 April 2021 is dismissed accordingly.