RE THAI MANH TUAN

CAMP 90/2023, [2025] HKCA 263

On intended appeal from [2021] HKCFI 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 90 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 558 OF 2021)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 10 May 2021[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

2.  The applicant has filed a supporting affirmation and a statement together with the summons to support his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Vietnam aged 36. He was arrested by the police on 21 July 2019, after entering Hong Kong illegally. He lodged a non-refoulement claim on 2 June 2020, after serving sentence for theft and remining in Hong Kong illegally. The applicant’s claim is based on fear of being harmed or killed by a moneylender due to his inability to repay his debt. His case is that when he failed to make repayment in May 2019, the moneylender and his people threatened to harm him and later assaulted him on one occasion with metal poles and on three other occasions with fists and kicks. The details of his claim were set out in [6] of the Director’s decision and [5] to [13] of the Board’s decision.

5.  By a notice of decision dated 29 June 2020, the Director rejected the applicant’s claim, having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

6.  The applicant appealed the Director’s decision to the Board. The Board considered it was necessary to hold an oral hearing and determined the appeal on the papers. By its decision given on 18 January 2021, the Board dismissed the applicant’s appeal.

7.  In gist, the Board found, on the basis of the applicant’s claim, it was a private dispute between the applicant and the moneylender, the harm to the applicant, whether physical or mental, did not attain the minimum level of severity. The Board considered that the moneylender was only pressurising him to make repayment but had no intention to cause serious harm to him. The Board was not satisfied that there were substantial grounds for believing that there was a real risk of the applicant being tortured, ill-treated or subject to the perceived harm. The Board also found state protection and internal relocation option were reasonably available, which would reduce any risk that the applicant might face. The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection and dismissed their appeal.

8.  On 20 April 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He only outlined his claim in the affirmation, but did not provide any grounds for seeking relief.

9.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application is late by two days. He did not provide any explanation for the delay.

10.  The Judge dealt with the application on paper. By a Form CALL-1 dated 10 May 2021, the Judge extended the time for the applicant to apply for judicial review, but refused the application for leave to apply for judicial review. The Judge allowed the application to be made out of time, considering that the delay was insignificant and the applicant was being detained by the Immigration Department. The Judge, however, found the intended judicial review not reasonably arguable for the reasons he gave in [12] and [13]:

“12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. On 10 May 2022, which was one year after the Judge’s decision, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision. The Judge heard the application at hearing on 19 October 2022. By his decision handed down on 1 November 2022[6], the Judge refused the application.

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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.

13.  The applicant was late by almost one year, which is very serious delay. In the Court below, the applicant gave two different explanations for the delay. He claimed in the affirmation that he did not know English and needed his friend to help him. At the hearing before the Judge, he said he did not receive the Judge’s decision and it was the immigration officer who informed him of the decision. He further explained that he was previously imprisoned and it was after his discharge that he moved to stay in his address in Shum Shui Po. The Judge noted from the court record that the decision was initially sent to Tong Fuk Prison but it was returned undelivered. After enquiry with the Immigration Department, the decision was resent to the applicant’s Shum Shui Po address on 16 July 2021. The Judge found, which we agree, the applicant failed to provide a good or valid reason for the serious delay. In the present application, the applicant has not provided any explanation for his delay. In the circumstances, the applicant has to show that his intended appeal enjoys a real prospect of success.

14.  When considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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 applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

15.  In his affirmation in support of the present application, the applicant complained that the Judge’s decision was made unfairly without allowing him an opportunity to clarify his case and the situation in his country.

16.  In the Statement that was lodged together with the present summons, the applicant further stated that (a) the creditors and gangsters in Vietnam are cruel and violent and his life would be seriously threatened or she might even be killed; (b) internal relocation was not feasible as his health was not good, he will be disadvantaged in the labour market, and there is no guarantee that he can adapt to the new environment and make a living; (c) with the nationwide network of the gangsters and the corrupt police in Vietnam, it is quite possible that the creditor and his people will locate the applicant even if he moves to a new place; and (d) the Director has not considered his human right.

17.  We are of the view that the matters stated in the applicant’s affirmation and the Statement do not constitute viable arguments in support of the intended appeal. Firstly, under Order 53 rule 3(3) of the Rules of the High Court, the court may determine an application for leave to apply for judicial review without a hearing unless a hearing is requested in the notice of application. Given that the applicant did not request an oral hearing in the Form 86, or provide any specific ground for seeking relief, the Judge was justified in not listing the application for an oral hearing. There is no error of law or procedural unfairness. Secondly, the Board had assessed that the risk of harm to the applicant in Vietnam was unlikely, and further found that the applicant’s claim did not satisfy the requirements of the appliable grounds, and state protection was available and internal relocation was viable. The applicant has not identified any error in the Board’s assessment and findings. This being the case, there is no basis to support the assertions made in the Statement. Neither is there any proper legal basis for the court to judicially review the Board’s decision. The Judge was correct to refuse leave to apply for judicial review.

18.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 1 March 2023.