RE TRAN VAN THANH

CAMP 259/2022

[2022] HKCA 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 259 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 453 OF 2018)

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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 15 January 2020[1] dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written statement to support his application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave 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’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 51.  He entered Hong Kong illegally and was arrested by the police on 29 July 2014.  He later raised a non-refoulement claim based on his fear of being harmed or killed by his creditor and his followers, who have triad background, due to his inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By his decision dated 30 July 2018, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at a hearing held on 24 May 2019, during which the applicant was represented by a lawyer assigned by the Duty Lawyer Service.  By its decision dated 22 July 2019, the Board dismissed the appeal.  The Board found that, on the applicant’s own case, it was a private loan dispute between two citizens, the applicant was never physically attacked by his creditor and he had never sought assistance from the police or the authority.  The Board held that the applicant failed to establish he would be subject to risks of torture, ill-treatment or persecution if he were to return to his country.  The Board further found that internal relocation alternatives were reasonably available to the applicant, which would reduce or negate any risk that he might face.  The Board concluded that the claim failed on all applicable grounds.

8.  On 20 March 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Director’s decision and also the Board’s decision.  He did not put forward any specific ground for seeking relief.  He only stated in his affirmation that he could not return to Vietnam as he did not have money to repay his debt and he would be killed.  It should be noted that at the time of the filing of the Form 86, the Board had yet to hear and determine the applicant’s appeal.   

9.  The Judge heard the application at a hearing held on 13 November 2019.  By then the Board had given its decision dismissing the applicant’s appeal.  By a Form CALL-1 dated 15 January 2020, the Judge refused to give leave to apply for judicial review as he found the applicant’s intended judicial review had no prospect of success. He gave his reasons at [13] to [15] as follows:

“13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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.

15.  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.”

10.  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. 

11.  By a summons filed on 7 May 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing held on 15 July 2020, and by his decision handed down on 27 August 2020[6], he granted a 14-day time extension.  The applicant did not file an appeal within the extended time.  On 30 September 2021, he made a second application for extension of time.  The Judge heard the second application on 4 May 2022.  By his decision handed down on 18 May 2022[7], the Judge refused to further extend the time for the applicant to appeal. 

12.  On 18 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of 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. 

14.  The applicant was more than one year late when he made the second time extension application.  This is a very serious delay.  In the written statement in support of the present application, he stated that he did not receive the Judge’s order of 27 August 2020 extending the time for him to appeal, even though there has been no change in his address.  He also said that it was the immigration officer who told him that his case had concluded whereupon he made enquiry with the Court and was given a copy of the decision.  He gave a similar explanation to the Judge in his second time extension application.  The Judge did not accept the explanation, pointing out that the decision was sent to the address provided by the applicant and has not been returned by the post office.  More importantly, the Judge considered it was implausible that the applicant having filed a summons to ask for more time would simply leave the matter as it was for more than a year and did not make enquiry with the Court as to the progress of his application, if indeed he had not received the decision and the order.  We agree with the Judge’s view and do not find the applicant has satisfactorily explained his serious delay.  This being the case, the applicant will have to show that the intended appeal has a real prospect of success.    

15.  In assessing 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].

16.  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 Board afresh as if it is a fresh application for judicial review.

17.  In the affirmation in support of the present application, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country.  He also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time. 

18.  The applicant stated in the written statement that his oral evidence to the Director and the Board was true but it was not accepted.  He complained that the Director and the Board did not investigate or take steps to verify his claim, and they lacked objectivity when assessing his claim.  It was said that it was impossible for him to gather evidence since he was up against the entire State regime.  He further complained that the Director did not consider his human rights under the Basic Law and various international covenants.             

19.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  The complaint that he did not have an opportunity to clarify his case cannot stand since the Judge heard his application at an oral hearing during which he was at liberty to make submission to support his application.   

(2)  As to the complaints made against the Director and the Board in the written statement, they are misplaced because the Board did not reject his evidence.  The Board’s decision is that on his own evidence and case, the applicant’s claim did not meet the requirements for non-refoulement protection under each of the applicable grounds.  The applicant’s complaints simply do not engage the Board’s reasons for dismissing his appeal, and failed to pinpoint any error in the Board’s findings. 

(3)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

20.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.           

21.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal the Judge’s decision.  Accordingly, we dismiss the applicant’s summons filed on 18 July 2022. 

[1] [2020] HKCFI 76

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2020] HKCFI 2072

[7] [2022] HKCFI 1338