HOANG GIA HIEU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 148/2024, [2025] HKCA 923

On appeal from [2024] HKCFI 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1158 OF 2022)

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J U D G M E N T

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

1.  On 28 March 2024, Deputy High Court Judge To refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 4 June 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed on 26 July 2024[2].

3.  On 7 August 2024, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the order dated 26 July 2024.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 28 March 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 12 February 2021.  He was arrested by the police on 26 April 2021 and a deportation order was issued against him on 7 May 2021.  He lodged a non-refoulement claim on 17 May 2021 on the basis that, if refouled, he would be harmed or killed by his creditor and his men.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 31 December 2021, 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].  

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 11 August 2022.  The Board considered there are fatal discrepancies in the applicant’s story and his testimony was full of implausibility, and it found that the applicant’s stories about his business, the loan, the harm and ill-treatment from the moneylender were all fabrication.  The Board also held that even if the applicant’s allegations were accepted, his claim still could not succeed as the alleged harm had not attained the requisite minimum level of severity.  It further held that the applicant failed to show why he would not be able to obtain state protection and relocate to other parts of Vietnam to avoid the alleged risk of harm.  Therefore, the Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on the applicable grounds and rejected the appeal on 5 October 2022.

The intended judicial review

7.  On 27 October 2022, the applicant filed a Form 86 and an affirmation in HCAL 1158/2022 to seek leave to bring judicial review against the Board’s decision.  He put forward the following grounds for his intended challenge:

(1)  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.  The adjudicator’s decision is clearly unsafe.  It is wrong for the adjudicator to rule the applicant as unreliable;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)  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.

8.  Upon the applicant’s application for withdrawal of the leave application, on 24 August 2023 DHCJ To ordered that the leave application be withdrawn.  The applicant subsequently applied to re-open his case, saying that his withdrawal resulted from certain duress on his family. The judge decided to allow him to re-open his leave application on 27 December 2023[7].

The judge’s decision 

9.  The applicant attended a hearing of the leave application before DHCJ To on 19 February 2024.  He confirmed at the hearing that he had no complaint of error of law, procedural unfairness or irrationality in the Board’s decision.  The judge found that the applicant’s first ground involved the Board’s findings of fact, which is not a proper ground for review when there is no error of law, procedural unfairness or irrationality in the Board’s decision.  The judge further found that the second and third grounds are not supported by any credible evidence.  He held that the Board’s decision is without fault and concluded that there is no realistic prospect of success in the intended judicial review.  Therefore, the judge dismissed the leave application on 28 March 2024.

Grounds of intended appeal

10.  The applicant’s grounds stated in his supporting affirmation and written statement are substantially the same as the grounds he raised at the court below.  He also put forward these further contentions:

(1)  The decision of the court was reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;

(2)  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

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 28 March 2024 and the applicant was late by more than 7 weeks when he took out the summons at the court below on 4 June 2024.  He explained that he did not receive any letter from the court and did not know how to appeal[8].

13.  The court had sent the judge’s decision on 28 March 2024 by post to the applicant’s address which was provided by the applicant to the court at the hearing on 19 February 2024.  It is noted that such address is different from the applicant’s latest address stated in his summons filed with the court below on 4 July 2024 and in the present summons, but the applicant did not file any notice of change of address for service to inform the court of his change of address.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

14.  Under the said circumstances, the applicant’s delay is inexcusable.  Therefore, he 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).

15.  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.

16.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.

17.  In the present application, the applicant’s complaint of unfairness in not having an opportunity to clarify his case and situation before the judge is totally without basis.  In particular, he had filed his affirmation and written statement, and was also given the opportunity to make oral submissions at the hearing before the judge.

18.  The rest of his grounds and submissions are just bare assertions without any particulars or evidence in support.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. He also failed to adduce any reliable evidence to refute the Board’s findings and failed to show that there are errors of law or procedural unfairness or irrationality in the decision of the Board.

19.  For the above reasons, there is no prospect of success in the intended appeal.  Therefore, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 28 March 2024 and dismiss the summons filed on 7 August 2024.