NGUYEN VAN THIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 363/2023, [2024] HKCA 824

On Appeal From [2023] HKCFI 2668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 363 OF 2023

(ON APPEAL FROM HCAL NO 1389 OF 2021)

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J U D G M E N T

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

1.  This is the Applicant’s application for relief from sanction for his failure to comply with an unless order of the Court made on 15 December 2023 (“the Unless Order”) regarding the lodgement of two sets of appeal bundle in accordance with the directions given by the Registrar of Civil Appeals on 15 November 2023. Having considered the papers before us, we consider that it is appropriate to deal with the application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

2.  The background facts leading to the present application can briefly be summarized as follows.

3.  The Applicant is a Vietnamese national. He entered Hong Kong illegally on 1 August 2019. On 13 August 2019, he surrendered himself to the Immigration Department and lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by the family members of a traffic accident victim or by the gangsters hired by that family because they blamed him for the death of the victim in the traffic accident.

4.  The Applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”) on all applicable grounds, namely, the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4], on 30 December 2019. His appeal against the decision of the Director was rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 26 April 2021.

5.  On 6 October 2021, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s decision of 26 April 2021. The Applicant’s leave application for judicial review was rejected by Deputy High Court Judge K W Lung (“the Judge”) on 2 November 2023 (“the Order”), holding that his leave application was late, and also that he failed to provide any specific grounds of review and there was no reasonable prospect of success in his intended judicial review. The Judge’s reasons for his decision were fully set out in the CALL-1 Form dated 2 November 2023 ([2023] HKCFI 2668) and it is not necessary to repeat them in this judgment.

6.  The Applicant lodged a Notice of Appeal against the Order on 15 November 2023. In the Notice of Appeal, the Applicant merely contended that the gravity of his circumstances had not been weighed or realized by the Board and the Director when considering his non-refoulement claim, and he should be given an opportunity to plead his case properly.

7.  In his supporting affirmation dated 15 November 2023, the Applicant stated that there was a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but failed to identify what such good ground might be.

8.  The Applicant failed to comply with the directions given by the Registrar of Civil Appeals on 15 November 2023 to lodge two sets of appeal bundle on or before 29 November 2023, and further failed to comply with the Unless Order requiring him to lodge two sets of appeal bundle by 29 December 2023.

9.  Pursuant to the Unless Order, the Applicant’s appeal was dismissed on 29 December 2023.

10.  The Applicant did not apply for relief from sanction within 14 days in accordance with Order 2, rule 4 of the Rules of the High Court. He belatedly applied for relief from sanction on 3 July 2024. In his affirmation in support of the application filed on the same date, he asserted that he did not receive the Unless Order and that he was only informed of the dismissal of his appeal when he attended a hearing in Sha Tin Magistrates’ Courts. He proceeded to search the court file, but by then he was already out of time to apply for relief from sanction. He also stated that he does not know English and he was assisted by his friend in filing the appeal, and his friend did not inform him of the requirement of filing the appeal bundles. We shall treat the Applicant’s affirmation of 3 July 2024 as his submissions in support of the present application.

11.  From the court records, it would appear that the Unless Order was originally mailed to the Applicant on 15 December 2023, but it was returned to the court on 2 January 2024 because the Applicant’s address was not correctly stated. The Unless Order was re-sent to the Applicant’s last reported address stated in the Notice of Appeal on 3 January 2024, and it was not returned through undelivered post. In view of the fact that by the time that the Unless Order was re-sent to the Applicant, it was already past the deadline for the Applicant to comply with the Unless Order, we accept that the Applicant has given a good explanation for failing to comply with the Unless Order (which required him to lodge two sets of appeal bundle by 29 December 2023). However, we do not accept that the Applicant has provided any good explanation for his substantial delay in applying for relief after the Unless Order had been re-sent to the Applicant.

12.  As for his complaint about the lack of language assistance, the Applicant’s Notice of Appeal, his affirmation in support of the appeal filed on 15 November 2023, and his summons and affirmation filed on 3 July 2024 for this application are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance.

13.  More importantly, the Notice of Appeal and his affirmation of 15 November 2023 fail to raise any viable ground(s) of the appeal against the Order. The Applicant’s appeal has plainly no prospect of success.

14.  For the above reasons, it is futile to grant the Applicant relief from sanction. The Applicant’s summons dated 3 July 2024 is accordingly dismissed.

15.  This judgment is written in English because the Applicant’s Notice of Appeal and supporting affirmation are both written in English. If required, the Applicant may arrange with the Clerk to this Court for this judgment to be orally interpreted to him in the Court’s premises.