BUI THANH TAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 218/2023, [2024] HKCA 128

On appeal from [2022] HKCFI 3073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 218 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 707 OF 2019)

________________________

________________________

________________

J U D G M E N T

________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 5 October 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 7 March 2023, the applicant filed a summons at the Court of First Instance to seek leave to appeal against that decision out of time. The judge dismissed the summons on 13 April 2023[2].  

3.  On 9 June 2023, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time. The Registrar of Civil Appeals directed him to lodge written submissions by 23 June 2023. To date, the applicant has not done so, other than the three-page statement he lodged on 9 June 2023.

4.  The applicant is a national of Vietnam. He entered Hong Kong illegally from the Mainland on 16 November 2014. He lodged a non-refoulement claim on 26 November 2014 on the basis that he would be ill‑treated or killed by his creditor and the latter’s associates if he returns to Vietnam.

5.  The decisions of the Director and the Board

6.  By a Notice of Decision dated 17 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

7.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 15 October 2018. The Board did not accept the applicant’s case as it considered the applicant’s evidence contradictory, illogical and implausible. The Board did not accept that the creditor and his associates have any real intention to seriously harm or kill the applicant, as he was not injured in the alleged attack and there is no evidence to show he was in need of any treatment. Moreover, the applicant’s problem is a private dispute and there is nothing to show there is any involvement from the Vietnamese government. The Board held that the availability of state protection and internal relocation alternatives in the Vietnam can lower or negate the perceived risk. The Board therefore decided that the applicant’s claim failed on all applicable grounds and dismissed the appeal on 25 February 2019.

The intended judicial review

8.  On 13 March 2019, the applicant filed a Form 86 and an affirmation in HCAL 707/2019 to seek leave to bring judicial review against the Board’s decision. He put forward the following grounds for his intended challenge:

(1)  The Board was unfair as it cherry-picked certain evidence in assessing the applicant’s evidence, without considering all the evidence.

(2)  The Board was biased in considering the credibility of the applicant.

(3)  The Board underestimated the risk of harm, adopting its own standards without considering the statement of the applicant.

The judge’s decision

9.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the Board had clearly set out the significant discrepancies in some important aspects for which the applicant failed to refute. The judge also considered there is no error of law or irrationality or procedural unfairness in the Board’s decision and the applicant’s grounds are without basis. As there is no reasonable prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 5 October 2022.

Grounds of intended appeal

10.  The applicant stated his grounds of appeal in his written statement and affirmation, which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country.

(2)  It was unsatisfactory for the court to rule that the applicant had no chance of success in reviewing the decisions of the Director and the Board.

(3)  If he returns to Vietnam, his life would be seriously threatened or he would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people.

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles.

(5)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence.

(6)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 5 October 2022 and the applicant was late by more than 4 months when he took out the summons at the court below on 7 March 2023. The delay is substantial and the applicant did not provide any explanation for the delay.

13.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  As the applicant did not request for an oral hearing in his Form 86, the judge was entitled to consider his application on paper without an oral hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court. The applicant had also filed an affirmation to set out his grounds. There is nothing to show that the judge’s decision was made unfairly.

16.  The rest of the applicant’s grounds are just bare assertions without particulars or evidence in support. The Board has given detailed reasons for the adverse findings on the applicant’s credibility in the decision. The applicant failed to adduce any evidence to refute the Board’s findings.

17.  Furthermore, he failed to show that the judge had made errors of law, failed to take account of relevant matters placed before the court, or was otherwise plainly wrong in the decision.

18.  As there is no prospect of success in the intended appeal, we refuse to grant extension of time to appeal against the judge’s decision of 5 October 2022. We therefore dismiss the summons filed on 9 June 2023.