RE TRAN DINH NAM

CACV 189/2024, [2025] HKCA 467

On Appeal From [2024] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2024

(ON APPEAL FROM HCAL NO 84 OF 2024)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 29 April 2024 ([2024] HKCFI 1179) (“the Leave Decision”) refusing to grant him extension of time and dismissing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 25 November 2022 (“the Board’s Decision”), whereby the Board dismissed his application for late filing of two Notices of Appeal respectively dated 9 August 2022 and 17 August 2022.  By those notices of appeal, the applicant sought to appeal against the decision of the Director of Immigration (“the Director”) dated 4 October 2021 (“the Director’s Decision”) refusing his non-refoulement claim.

2.  On 13 May 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of the Vietnam.  He entered Hong Kong illegally on 20 November 2020 and was arrested on 23 November 2020.  On 30 November 2020, he made a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor owing his failure to repay his loan.  Details of the applicant’s claim were summarised by the Judge at [9] ‑ [15] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed against the Director’s Decision to the Board by two Notices of Appeals respectively dated 9 August 2022 and 17 August 2022.  By then, the applicant was more than nine months out of time in taking out his appeal.  By the Board’s Decision, the Board refused to allow the late filing of both Notices of Appeal.  The Board’s reasons were summarised by the Judge at [19] ‑ [21] of the Leave Decision:

“19. Under section 37ZS of the Immigration Ordinance, an appeal against the decision of the Director must be lodged within 14 days after the Notice was served on the applicant. Section 37ZT(1)(a) mandates a late applicant to state his reasons for the late filing in Section 5 of the NOA and provide supporting documentary evidence. The Notice was issued on 4 October 2021. The Applicant filed the first NOA on around 9 August 2022, which did not contain any explanation for the late filing. He then filed the second NOA on 17 August 2022 with an explanation for the late filing. His reason for the late filing as given in Section 5 of the second NOA is:「本人收到此文件後，但並未委派任何翻釋人員所以不懂填寫，以至延誤」。(Translation: ‘After receiving the Notice, no interpreter was assigned (to me). I could not file in the NOA and hence the delay’). Even if the filing of the second NOA were given retrospective effect, it was filed more than nine months out of time.

20. The Board rejected his explanation. It was satisfied that the Notice had been duly served on the Applicant’s legal representative on 4 October 2021 and the time limit for lodging an appeal was stated in the Notice. According to the usual practice, the content of the Notice must have been explained to the Applicant and he must have been advised of his future course of action to take if he wished to challenge the Notice.

21. The Board also noted that the Applicant chose to file the second NOA using a form in Chinese. He put down in Chinese that the language he speaks is Vietnamese and the reason he gave for the late filing in that NOA was completed in Chinese.  From these facts, the Board inferred that the Applicant must have had some language assistance in filling out the form.  It therefore did not accept that the Applicant failed to complete the NOA due to a lack of interpretation service or that he had exercised all due diligence to file the NOA within the 14-day period or that he failed to file the NOA within that period because of circumstances beyond his control.  It therefore held that there was no good reason for the default and refused the late filing of his NOA.”

THE JUDGE’S DECISION

6.  On 8 January 2024, the applicant filed a Form 86 dated 27 December 2023 in English to apply for leave to apply for judicial review against the Board’s Decision.  By then he was late for over ten months in taking out his application.  In his Form 86, he relied on various grounds of review challenging against the Director’s Decision and the Board’s Decision on the substance of his non-refoulement claim, including Wednesbury unreasonableness, irrationality, procedural unfairness as well as failing to give proper weight to state acquiescence and placing too much weight on the country of origin information.  In his supporting affirmation, he further asserted that the Board’s Decision was unfair and unreasonable and he would be at risk of being killed if refouled.

7.  On 9 April 2024, the applicant attended an oral hearing before the Judge.  A Vietnamese interpreter was also present to provide language assistance.

8.  By the Leave Decision, the Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review.  His reasons are set out at [23] ‑ [28] of the Leave Decision:

“23.  … All these grounds [as set out in his Form 86] are directed at the Director’s decision in the Notice.  They aim at the merits of the Applicant’s non-refoulement claim. They have nothing to do with the Applicant’s explanation for the late filing of his NOAs, which is the subject matter of his intended judicial review.

24.  In his supporting affirmation, the only complaint he raised was that the Board’s Decision is unfair and unreasonable and he will be at risk of being killed if returned to Vietnam.  He had been invited by the Court via its letter dated 23 January 2024 to advise the Court of his first language and to file submissions. He did not respond.  Though this ground is, on the face, directed at the Board’s Decision refusing his late filing, in substance it is directed at his risk of harm if refouled, ie merits of his non-refoulement claim.  The Board has not made any decision on his risk of harm.  It only refused his reasons for the late filing.  This ground is therefore also irrelevant.

25.  All these grounds are irrelevant as challenges to the propriety of the Board’s Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that his explanation that the authorities failed to provide him with interpretation service is not a good reason for the delay in filing his NOAs, that he had failed to exercise diligence in filing the NOA within time and was not prevented from doing so by reason of circumstances beyond his control.  In effect, he is seeking to challenge the Board’s finding of the above facts.  That is not permissible.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

26.  The guiding principle in determining whether to grant relief from consequence of failure to comply with statutory time limit is the three-stage approach as stated by the English Court of Appeal in The Secretary of State for the Home Department v Begum.  The Board’s Decision was made on the basis of the primary facts which are not in dispute or are incontrovertible, such as service of the Notice on the Applicant via the DLS, the date of filing of the NOAs etc. At the hearing, the Applicant did not challenge these findings of the Board.  He only half‑heartedly said he had no recollection.  He could have no valid complaint about such finding of fact by the Board.  It was on the basis of these primary facts found that the Board made its secondary finding of fact.  Though Begum was not quoted by the Board, the Board actually followed the principle in Begum to the letter.  It identified the more than nine months’ delay as a serious and significant failure to comply with the rules.  It rejected the Applicant’s explanation and found there was no good reason for the failure.  It evaluated all the circumstances of the delay and found it is fair and just to refuse the late filing and that are no special circumstances which would make it unjust not to allow the late filing.  These are finding of fact solely within the realm of the Board which the Court may not intervene save for errors of law, procedural unfairness or irrationality in the Decision.  The ultimate decision was reached by applying the law to these facts.  That is a mixed finding of facts.  Insofar as it is a finding of fact, it is also within the realm of the Board to make which this Court may not intervene.  Insofar as it is a finding of law, it is absolutely correct.  The Board had regard to the relevant statutory provisions, the Applicant’s explanation for the late filing and all the circumstances.  It correctly adopted the approach in Begum and reached the conclusion that it is fair and just to refuse the late filing.  It was unable to find any special circumstances which might make it unjust not to allow the late filing.  It was for all these reasons that the Board refused the late filing.

27.  The Court is satisfied that the Board had correctly directed itself on the law and key legal principles applicable to the late filing of NOAs.  The Decision is essentially one of finding of fact which is solely within the realm of the Board to make, which the Court on a judicial review will not intervene save for error of law, procedural unfairness and irrationality.  The Applicant confirmed at the hearing that he had no complaint on these grounds.  The Court could detect no errors of law in the Decision. The Board observed a very high standard of fairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

28.  Accordingly, extension of time to file the leave application and leave to apply for judicial review are refused.”

THIS APPEAL

9.  In his Notice of Appeal filed on 13 May 2024 in English, the applicant mainly complained that, if refouled, his life would be seriously threatened by his creditor and local gangsters as it might be possible for them to locate him.  He also claimed that internal relocation would be completely unfeasible as he was not an active person and there would be no guarantee that he would be able to adapt to the new place.  He also complained that the Immigration Department failed to consider his human rights under various legislations but failed to particularise his complaint.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 13 May 2024, the applicant failed to lodge any written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst, supra, at [14(6)]).

12.  In our view, the applicant’s allegations have no substance.  From the outset, all his allegations are general and bare without any specific particulars or evidence in support.  Moreover, the focus of the Board was solely on whether to allow the late filing of his Notices of Appeal pursuant to section 37ZT of the Immigration Ordinance. As correctly noted by the Judge, the Board had duly considered the fact that the applicant had the benefit of legal advice and assistance provided by his legal representative and thus must be aware of the time limit for filing his Notices of Appeal.  The Board also noted on the facts that the applicant had access to people who were able to assist him in completing his second Notice of Appeal and thus his assertion that he was not able to complete the Notices of Appeal for the lack of interpretation service was not substantiated.  Accordingly, on the evidence before it, it must be open for the Board to hold that the applicant had not exercised all due diligence to file the Notices of Appeal within the required time limit and that there was no good reason for the default.

13.  The applicant’s case was considered in detail by the Judge.  The applicant has not been able to demonstrate any error in the Leave Decision, or advanced any viable ground of appeal against the Leave Decision. We are not satisfied that there is any error in the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.