VU DINH PHUONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 280/2023, [2024] HKCA 1014

On appeal from [2023] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 280 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 326 OF 2023)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 24 May 2023, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to seek judicial review and dismissed his application for leave to apply for judicial review against decision of the Director of Immigration (“the Director”) in refusing to allow him to make a subsequent non-refoulement claim[1].

2.  On 15 June 2023, 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 by the judge on 3 August 2023[2].

3.  On 11 August 2023, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time.

4.  The applicant is a national of Vietnam. He alleged that he entered Hong Kong illegally on 12 April 2014. He was arrested by the police on 16 July 2014. He lodged a non-refoulement claim on 22 September 2014 on the basis that he will be harmed or killed by his creditor and associates if he returns to Vietnam.

The decisions of the Director 

5.  By a Notice of Decision dated 6 October 2015 and a Notice of Further Decision dated 7 November 2016, 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.  He lodged an appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”) on 20 October 2015. On 15 September 2017, the appeal was dismissed upon the applicant’s application for withdrawal. He was repatriated to Vietnam on 24 December 2017.

7.  The applicant entered Hong Kong illegally again on 15 January 2022 and was arrested by the police on 16 February 2022. He requested to make a subsequent claim for non-refoulement protection by letter on 28 March 2022. He claimed that he cannot return to Vietnam as he will be harmed by his new creditor.

8.  By a Notice of Decision dated 16 June 2022, the request for subsequent claim was refused by the Director. The Director considered that the issue related to the new debt is of the same nature as the loan dispute in the previous claim which had already been rejected so the new debt cannot constitute any change of circumstances warranting him to make a subsequent claim. The Director further considered that even if it is accepted that the new creditor is a usurer and the applicant was physically assaulted by him, the loan dispute is still private in nature and there is no indication that the applicant is a target of the Vietnamese authorities. In addition, the Director assessed that reasonable state protection and internal relocation options will be available to the applicant in Vietnam which can lower or negate the perceived risk. Thus, the Director decided that the applicant failed to show significant change of circumstances and the intended subsequent claim would have no realistic prospect of success.

The intended judicial review

9.  On 2 March 2023, the applicant filed a Form 86 and an affirmation in HCAL 326/2023 out of time to seek leave to bring judicial review against the Director’s decision. He only stated that he cannot return to Vietnam because his life will be in danger there, without putting forward any grounds for his intended challenge against the Director’s decision.

The judge’s decision

10.  DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing. The judge held that there is no valid reason for the substantial delay and there is also no error of law or procedural unfairness or any failure to apply high standards of fairness in the Director’s decision. As there is no prospect of success in the applicant’s intended judicial review and in the absence of any good reason for the serious delay, the judge refused to grant extension of time and dismiss the leave application on 24 May 2023.

Grounds of intended appeal

11.  The applicant stated his grounds of appeal in his written statement and affirmation which may be summarised as follows:

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

(2)  It was unsatisfactory for the court to rule that the applicant had no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life will be seriously threatened or he will 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;

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

(5)  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 creditors and gangsters to find out the applicant’s new residence;

(6)  As he is wanted by the Vietnamese police for disturbing public order, he is worried that he would be brutally tortured by the police if he is caught by them;

(7)  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 and disposition

12.  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.

13.  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 24 May 2023 and the applicant was late by 8 days when he took out the summons at the court below on 15 June 2023. The applicant explained that he did not receive the court’s decision sent to him by post and he was only informed of it by the immigration officer when he reported on his recognizance.

14.  The applicant provided the address of the Castle Peak Bay Immigration Centre as his address in the Form 86. The court’s previous letter sent to the applicant to that address was returned to the court. Therefore, the court wrote to the Immigration Department to ask for the updated address of the applicant on 10 May 2023. The court sent the decision dated 24 May 2023 by post to the applicant’s new address which was provided to the court by the Immigration Department, but the mail was returned by the Post Office.

15.  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).

16.  The address stated in the applicant’s application filed with the court below on 15 June 2023 and his present application is different from the addresses stated in his Form 86 and in the record of the Immigration Department at the material time. The applicant has not filed any notice of change of address for service with the court. Under the circumstances of this case, the applicant’s explanation for the delay is not justifiable.

17.  As the delay is inexcusable, the applicant 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.

18.  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.

19.  The applicant had not raised the issue about being wanted by the Vietnamese police for disturbing public order in the previous applications before the lower court. It is not open for him to raise this new ground for the first time at this late stage of the proceedings. In any event, this ground is not supported by any particulars and evidence.

20.  Besides, the judge was entitled to consider his leave application on paper without a hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court as the applicant did not request for an oral hearing in his Form 86. There is nothing to show that the judge’s decision was made unfairly.

21.  The rest of his grounds are not viable. They are not supported by evidence and the applicant failed to show that the judge was wrong in holding that there is no error of law or procedural unfairness or any failure to apply high standards of fairness in the Director’s decision.

22.  For the above reasons, there is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 11 August 2023 for extension of time to appeal.