RE BUI NGOC LE

CAMP 210/2023, [2024] HKCA 338

On Appeal From [2022] HKCFI 1819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 991 OF 2021)

____________________

____________________

________________

J U D G M E N T

________________

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

1.  On 5 June 2023, the applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 2 March 2023 ([2023] HKCFI 394) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 17 June 2022 ([2022] HKCFI 1819) (“the Leave Decision”) refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 2 July 2021 and the decision of the Director of Immigration (“the Director”) dated 23 October 2020 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnam.  He entered Hong Kong on 24 June 2015 illegally and surrendered to the authorities on 30 June 2015.  By written representations dated 23 July 2015, 12 August 2015, 10 December 2015 and 21 May 2020, he raised a non-refoulement claim on the basis that he, if refouled, would be harmed or killed by a loan shark named PHAM Van Yuan (“Pham”).  Details of the applicant’s claim have been summarised by the Judge at [6] ‑ [12] of the Leave Decision.

5.  By a Notice of Decision dated 23 October 2020 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 2 July 2021, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [13] ‑ [16] of the Leave Decision:

“13. The Board found the Applicant incredible and did not accept his account. The Board identified the following improbabilities or inconsistencies in his evidence:

(1)  The Applicant claimed that his seafood business gave him a profit of about VND 200 million every month. If that were the case, he could have repaid his loan shortly without having to continue the loan unnecessarily for almost three years at an annual interest of about 60%;

(2)  The Applicant claimed that he put up his truck as security for the loan, but he also said that his truck was not worth much. The Board thought it improbable that Pham would have agreed to lend him money if he was not able to put up any adequate security;

(3)  The Applicant testified that the loan was to be repaid in full with interest after two years (for a total of VND 1.1 billion). That was inconsistent with the terms of the loan as given by him in the NCF;

(4)  The Applicant said in the NCF that he did not know Pham and he only learned about him from his neighbour. That contradicted his evidence before the Board that Pham was his neighbour whom he had known for fifty years;

(5)  The Board did not believe the Applicant’s claim that he put the loan document in his truck because it was his own evidence that he kept important documents at home;

14. The Board found the Applicant incredible for repeatedly absconding. He was released on recognisance and was due to report to the Immigration Department on 24 February 2016. He absconded and did not prosecute his claim for non-refoulement protection. He was arrested more than four years later when he was found to have taken up unlawful employment using a false instrument. He was subsequently convicted of those offences on 9 May 2020.

15. The Board did not accept his evidence. It inferred from the above finding that the Applicant’s real purpose of coming to Hong Kong was to seek employment rather than non-refoulement protection. It found there was no basis to support the Applicant’s claim for non-refoulement protection and dismissed his appeal.

16. The Board further held that even if his case were accepted, the Applicant was not entitled to protection because of availability of state protection and internal relocation. It was the Applicant’s own choice not to seek police protection and there was no concrete evidence to suggest that the Vietnamese government would be unwilling or unable to offer him protection from Pham. In addition, as an able-bodied person with good working experience, it would not be unreasonable to expect him to relocate to other parts of Vietnam such as Ho Chi Minh city to avoid the risk.”

7.  On 14 July 2021, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.  He advanced the following grounds as summarised by the Judge at [18] of the Leave Decision:

“18. The Applicant gave the following grounds for his application in the Form 86:

‘Decision(s) made in respect of my Non-refuolement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

I humbly ask this Honourable Court to grant leave to have the Decision judicially reviewed.’

In his supporting affirmation filed on the same day, the Applicant exhibited a copy of the Director’s Notice; but provided no other grounds or evidence in support. In substance, the Applicant is challenging the Decision on the usual grounds of error of law, procedural unfairness and irrationality. But he did not give any particulars.”

8.  On 10 May 2022, the applicant attended an oral hearing in person before the Judge.  A Vietnamese interpreter was also present to provide language assistance.

THE JUDGE’S DECISION

9.  On 17 June 2022, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [20] ‑ [22] of the Leave Decision:

“20. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

21. The Applicant’s claims are founded on his alleged debt owed to Pham and the threats Pham made against him and his family members. The Board carefully weighed the evidence and assessed the Applicant’s credibility. It found him incredible and his evidence inherently improbable. It did not accept his evidence about his debt, the threats to his life and his risks. As the Applicant bore the burden of prove of his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of internal relocation. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

22. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 9 September 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over two months late with his intended appeal.

12.  On 2 March 2023, the Judge refused the applicant’s application.  The Judge held that a delay of over two months was very substantial and the applicant failed to give any good reason for his delay.  As the applicant failed to provide proper explanation for the delay and grounds for his intended appeal, the Judge held that there was no prospect of success in his intended appeal.  Accordingly, his application for extension of time to appeal was dismissed.

THIS APPLICATION

13.  By a summons and a supporting affirmation (attaching a written statement) filed on 5 June 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons and  supporting affirmation, the applicant stated that he understood he had a good ground of appeal but failed to specify what the said ground was.  In his supporting affirmation, he stated that the Judge’s decisions were reached unfairly without allowing him an opportunity to clarify his case and his country's situation.

14.  In his written statement, he repeated that his life would be in danger if refouled and that internal relocation would be infeasible.  He alleged that there were corruption problems in Vietnam and that the Immigration Department failed to consider various legal provisions. However, those allegations are all general in nature without particulars.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  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 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, the applicant’s delay of over two months is very substantial.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

21.  Further, there is also no substance in the applicant’s complaints. His contentions are all general and bare assertions without any specific particulars or evidence in support.  His complaints mainly focus on the Board’s Decision and he fails to point out how the Deputy Judge had erred in reaching his decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Although he claims he has a good ground of appeal, he fails to specify what that ground is.  Also, he already had ample opportunities before this court and the Judge to present his case.  In particular, the applicant attended an oral hearing before the Judge for his application for leave to apply for judicial review where he had full opportunity to clarify his case and his country’s situation.  There is no substance in his assertions.  His allegations simply do not constitute proper grounds of appeal.

22.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 5 June 2023 is dismissed.