RE PHAM HUY TOI

CAMP 558/2021, [2024] HKCA 244

On Appeal From [2021] HKCFI 2348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 558 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2810 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 13 December 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 12 October 2021. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal (“the EOT Decision”)  ([2021] HKCFI 2920)  against the Deputy Judge’s earlier order dated 17 August 2021, dismissing the applicant’s application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 2348).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 6 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 4 January 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under 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 illegally in March 2015 and arrested by the police on 3 April 2015.  On 13 April 2015, he lodged a non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or killed by three creditors, from whom he borrow loans in a total of 1 billion Vietnamese currency for his bus transportation business which he was unable to repay.  He was released on recognizance on 20 May 2015.  He was arrested for taking up unlawful employment in Hong Kong on 24 January 2016 and was convicted and sentenced to 15 months’ imprisonment on 27 January 2016.  He was released again on recognizance on 6 December 2016.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 24 October 2018, he attended an oral hearing before the Board but refused to give evidence.  On 6 December 2018, the Board dismissed his appeal.  In essence, the Board found that the applicant’s evidence was general and vague as to his claim of dispute with his creditors which led to threats against him.  The Board also did not accept the applicant to be a credible witness.  Having assessed the evidence, the Board found that there was state protection available and internal relocation remained a viable option to the applicant.  Accordingly, the Board considered that the applicant failed to establish his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 10 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No specific ground of review was stated in his Form 86 or in his supporting affirmation.  He only repeated the alleged factual basis of his claim and claimed that the adjudicator did not understand his dangerous situation in Vietnam, and the Board’s Decision was reached unfairly.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [17] of the Leave Decision:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’

14. His grounds in support of this application are his opinions only without any evidence to support them and they do not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.”

The EOT Decision

9.  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.

10.  On 16 September 2021, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over two weeks late with his intended appeal.  In his summons, no ground of appeal or reason for the delay was given by the applicant.  In his supporting affirmation, he again repeated the alleged factual basis of his claim and stated his fear that he would be killed by his creditors if refouled to Vietnam.

11.  By the EOT Decision, the Deputy Judge noted that the applicant was unable to set out any valid ground to challenge the Board’s Decision and did not point out any error in the Leave Decision.  As his intended appeal had no realistic prospect of success, the Deputy Judge refused to grant extension of time and dismissed his application.

The Present Application

12.  In his summons, the applicant failed to give any reason in support of his application.  In his supporting affirmation, he once again repeated the alleged factual basis of his claim and his fear that he would be killed by his creditors if refouled to Vietnam.

13.  Following the approach this Court has adopted 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.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 13 December 2021, the applicant lodged his written submissions on 20 December 2021.  In those submissions, the applicant merely set out the factual background of his non-refoulement claim.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of over two weeks as substantial and the applicant has failed to provide any cogent explanation for his delay.  As such, the Court will only grant extension of time if his intended appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an 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: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  None of the matters raised by the applicant in his summons, supporting affirmation or written submissions for this application has identified any error in the Leave Decision.  As such, the applicant has failed to provide any proper ground of appeal.  There is simply no prospect of success in his intended appeal and it would be futile to extend time.

19.  For the above reasons, the application for extension of time to appeal is therefore refused and the applicant’s summons filed on 13 December 2021 is dismissed.