RE TRAN VAN MANH

CAMP 287/2022

[2023] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 287 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 903 OF 2021)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 23 November 2021[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written statement to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 42. He entered Hong Kong illegally and was arrested by the police on 10 September 2015. He later raised a non-refoulement claim based on her fear of being harmed or killed by his creditor, who has a triad background, due to his inability to repay his debt. The details of the applicant’s claim were set out in the decision of the Director at [11]. We will not repeat them.

6.  By his decision dated 27 January 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

7.  The applicant appealed the Director’s decision to the Board. The applicant was absent at the appeal hearing on 19 December 2018. The Board decided to determine the appeal without an oral hearing after the applicant failed to respond to the request to explain his absence. By its decision dated 15 August 2019, the Board dismissed the appeal. The Board found the applicant’s account on the loan and the assault and threat from his creditor to be vague and illogical. The Board did not accept that there was a loan and that the applicant was assaulted and threatened by the creditor when he defaulted in making repayment. The Board further held that even if the applicant’s account were to be accepted, the availability of state protection and internal relocation alternatives would lower or negate the level of risk that the applicant may face. The Board concluded that the claim failed on all applicable grounds.

8.  On 22 June 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any specific ground for seeking relief. He merely stated in his affirmation that he feared he would be killed by his creditor if he were to return to Vietnam.

9.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review should be made promptly, and in any event within three months from the day when grounds for the application first arose. The three-month period for the applicant to make the application ended on 15 November 2019. He was accordingly more than 19 months late when he filed the Form 86 on 22 June 2021.

10.  The Judge heard the application at a hearing. By a Form CALL-1 dated 23 November 2021, he refused to give leave to apply for judicial review. Principally, the Judge found the applicant had no good or valid reason for his serious delay in making the application. As to the merits of the intended application, the Judge found it had no prospect of success for the reasons set out in [14] to [17]as follows:

“14. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge. In the circumstances, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

12.  By a summons filed on 16 December 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing held on 13 July 2022. By his decision handed down on 26 July 2022[6], the Judge refused the application.

13.  On 3 August 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

14.  In considering whether to extend time for appealing against the refusal of 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.

15.  The applicant was nine days late in making his application, which is not an insignificant delay, but equally is not too serious. In the Statement, he explained the delay on the basis that the Judge’s order was written in English which he did not understand, he did not know about the deadline for filing appeal, he needed help from his friend in completing the papers and had to wait till his friend was free. We accept that the applicant may not be familiar with the legal process and may have difficulty understanding English and getting help with making the appeal. Since the delay is not serious, we would focus on the merits of the applicant’s intended appeal.

16.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the affirmation in support of the present application, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country. He also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time.

19.  The applicant stated in the Statement that his oral evidence to the Director and the Board was true but it was not accepted. He complained that the Director and the Board did not investigate or take steps to verify his claim, and they lacked objectivity in assessing his claim. It is said that it was impossible for him to gather evidence as he was up against the entire State regime. He further complained that the Director did not consider the applicant’s human rights under the Basic Law and various international covenants.

20.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair. The Judge heard the application at an oral hearing during which the applicant was at liberty to make submission to support his application. However, the Judge noted at [9] of the Form CALL-1 that the applicant was unable to put forth any ground to support his application.

(2)  As to the Statement, the complaints are misplaced given that the applicant was absent and did not give any oral evidence at the hearing before the Board.

(3)  In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the applicant’s case to be vague, lacking in details and internally illogical, and that state protection and internal relocation alternatives are reasonably available. The applicant’s complaints simply do not engage the Board’s reasons for dismissing his appeal, and failed to pinpoint any error in the Board’s assessment of his case.

(4)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.

21.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and that it would be futile to extend the time for him to apply for leave to judicially review the Board’s decision.

22.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal the Judge’s decision. Accordingly, we dismiss the applicant’s summons filed on 3 August 2022.