BUI QUANG HUY v. TORTURE CLAIMS APPEAL BOARD

CAMP 147/2021

[2021] HKCA 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 147 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 672 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  This is a renewed application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 18 September 2020 refusing to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 11 April 2019.  By that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 July 2017 rejecting his non-refoulement claim.

3.  Having considered the applicant’s summons and affirmation dated 6 May 2021 and his written submissions lodged on 22 June 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The applicant is a Vietnamese national.  He claims that if refouled to Vietnam, he would be harmed or killed by his creditors for failing to repay his loans.  The Deputy Judge summarised the details of his non-refoulement claim in Form CALL-1 dated 18 September 2020, at [1] to [5][1], which it is not necessary to repeat in this judgment.

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 26 July 2017, the Director rejected the applicant’s non-refoulment claims on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].  In his decision, the Director took into account all relevant circumstances of the applicant’s claim and considered that the level of risk of harm from his creditors upon his return to Vietnam was low due to the low intensity and frequency of past ill-treatment from them, and that his problems with his creditors were of a private nature without any state involvement and state or police protection would be available to him if required.  The Director also found reliable country of origin information showing that there were reasonable internal relocation alternatives available within Vietnam, and the applicant could move away from his home district to other cities, where it would be difficult if not impossible for his creditors to locate him.

BOARD’S DECISION

6.  The applicant lodged an appeal with the Board against the Director’s decision on 2 August 2017.[6]

7.  The Board did not find it necessary to schedule an oral hearing and dealt with the appeal on paper.[7]

8.  On 11 April 2019, the Board dismissed his appeal.

9.  In its decision, the Board did not take any issue with the applicant’s assertion that he had been threatened or assaulted by his creditors.  The Board, however, found no evidence of official state involvement that would preclude him from state or police protection.  The Board also found that the applicant had reasonable internal relocation alternatives within Vietnam.

10.  Hence, the Board rejected the applicant’s non-refoulement claim on all the applicable grounds.

THE DEPUTY JUDGE’S DECISION

11.  The applicant filed his Form 86 on 18 April 2018, applying to judicially review the Board’s decision.  In his Form 86, he did not provide any ground for seeking relief.  In his supporting affirmation (of the same date), he merely repeated his claim that he would be at risk of being killed by his creditors.

12.  Since the Form 86 was filed before the decision of the Board was rendered, the court, having received the Board’s decision on 12 May 2020, caused a letter to be sent to the applicant inviting him to submit any additional grounds in support of his intended challenge to the Board’s decision.  The applicant did not respond to that letter.[8]

13.  The Deputy Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and refused to grant leave to apply for judicial review.  The Deputy Judge’s reasons for refusing leave were set out at [11] to [15][9] of Form CALL-1 as follows:

“11.  Upon receiving a copy of the Board’s decision on 12 May 2020, the court therefore caused a letter to be sent to the Applicant inviting him to submit any additional representation or grounds in support of his intended challenge of the Board’s decision now that it was available, but no response has been received from him, nor did he request any oral hearing for his application. As such and in the absence of any error of law 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 reasonably arguable basis for his intended challenge.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision 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.

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

APPLICATION FOR EXTENSION OF TIME TO APPEAL

14.  On 12 November 2020, the applicant made an application for an extension of time to appeal against the Deputy Judge’s refusal of leave to apply for judicial review.  The applicant was more than five weeks late.[10]

15.  The application for extension of time was refused on 27 April 2021 by the Deputy Judge.  He did not accept the applicant’s explanation for the late filing of the extension application and held that the intended appeal was without merit:

“4. In the applicant’s case, a delay of more than 5 weeks must be considered as substantial, for which he explained in his supporting affirmation that as he was unable to understand the decision which is in English and hence had had to seek legal assistance for advice, but by the time he was able to do so and was ready to file his appeal, he was already out of time.

5. The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application and without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertion, I am not satisfied that he has provided any good reason for his delay.

6. More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that he cannot return to his home country as his problem still exists. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

16.  By summons dated 6 May 2021, the applicant renewed his application for an extension of time before this Court.

17.  In his affirmation in support of this application, the applicant stated that he did not file his appeal application in time because he did not have money to seek advice on the procedure, and he could not approach the High Court’s Resource Centre for Unrepresented Litigants for advice.  He also stated that he believed he had a good ground of appeal (without saying what his ground of appeal was), and in light of the merits of his application, he should be granted an extension to appeal out of time.

18.  In his written submissions lodged with the court on 22 June 2021, the applicant makes generic submissions on the general principles of law relating to non-refoulement claims.  He also claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to assess his credibility correctly.

LEGAL PRINCIPLES

19.  When considering whether to extend the time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to (1) the length of the 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.  Even if an applicant’s explanation for the delay is not accepted, the court would still examine if the intended appeal has merit.

20.  The general principles regarding an appeal in a non-refoulement judicial review case were most recently summarised in Re Mohammed Asgar [2021] HKCA 1239 at [17]-[18].  In short:

(1)   The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or in the process by which the decision was made.

(2)   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 considering the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  This court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review.

DISCUSSION

21.  As observed by the Deputy Judge, the applicant’s allegation that he could not understand the decision, as it was in English, and his inability to seek advice on the appeal procedure due to insufficient funds, is nothing more than a bare assertion.  Further, the applicant’s (new) allegation that he could not approach the High Court’s Resource Centre for Unrepresented Litigants for advice is implausible.

22.  The Deputy Judge was entitled to find that the delay was substantial, and this Court agrees that the applicant has failed to provide any good reason for his delay.  Nonetheless, this Court will still consider the merits of the intended appeal.

23.  This Court will only reverse the decision of the Deputy Judge refusing to grant leave to apply for judicial review if the applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24.  The applicant has not shown any such errors or raised any viable grounds of appeal in his summons, affirmation or written submissions.  There is no prospect of success in the applicant’s intended appeal.

DISPOSITION

25.  The application for extension of time to appeal is refused, and the applicant’s summons of 6 May 2021 is dismissed.