RE PHAM VAN TUAN

CACV 211/2022

[2022] HKCA 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 211 OF 2022

(ON APPEAL FROM HCAL 168/2022)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 13 May 2022 refusing leave to the applicant to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 3 July 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 23 April 2016.  He subsequently surrendered to the Immigration Department, and lodged a non-refoulement claim on 25 April 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor.  The details of the applicant’s claim have been summarised by the Judge at [3] and [4] of the Judge’s decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 25 July 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 12 June 2018, the Board dismissed the appeal on 3 July 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the evidence of the applicant to be incredible, and that in any event, suitable internal relocation options (such as to Ho Chi Minh City) were available to him.

The Judge’s decision

6.  The applicant filed a Form 86 on 24 February 2022 out of time, seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review. 

7.  In the applicant’s supporting affirmation, he stated that the Board had underestimated the risk of harm faced by him if he returned to Vietnam.

8.  After summarising the facts and background of the case, giving due consideration to the Decision of the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [19] of the CALL-1 Form:

“11.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  As the applicant was absent at the hearing before the Board, the Board had assessed the evidence before it and found that the applicant’s evidence was incredibility, giving reasons in support of its findings. The Board is entitled to make such findings as there is no explanation for the applicant’s absence up to date. The Board further found that the applicant’s case is a private matter without any state involvement. State protection is available to him and internal relocation is an option open to him, which he did not dispute in his affirmation.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI 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.’

16.  The applicant has not raised any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 24 May 2022, the applicant stated:

“…the grounds of this appeal are that the gravity of my circumstances have noted (sic) been weighed or realised by both Putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

10.  In his supporting affirmation filed on the same date, the applicant stated that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” and he asked this court to “allow [him] to appeal”.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

12.  The applicant lodged written submissions on 6 June 2022, in which he contended that he was “denied a fair procedure through the decision of the Director up to the appeal” and complained that he did not have access to assistance from the Legal Aid Department.  In addition, he referred to the well-established principles in ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

13.  The applicant has in his Notice of Appeal failed to identify with particulars any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.

14.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had erred in law, or was procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge is not required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.  Regarding the applicant’s complaint that he did not have the benefit of legal representation, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.  In this regard, we note that the applicant was legally represented at the interview conducted with the Immigration Department (see [23] of the Board’s Decision).

17.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his application before the Judge or in the processing of his non-refoulement claim.

18.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.