RE NGUYEN VAN KHANH

CAMP 297/2022, [2023] HKCA 1040

On Appeal From [2021] HKCFI 3906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 297 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1354 OF 2021)

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J U D G M E N T

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

1.  On 30 December 2021, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant for leave to apply for judicial review concerning the applicant’s non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 17 January 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 27 July 2022.

3.  On 10 August 2022, the applicant filed a summons in CAMP 297/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the Judge’s decision dated 27 July 2022.  This summons is treated as a renewed application for leave to appeal out of time against the JR Decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 August 2022, the applicant should lodge his written submissions in support of the Summons on or before 24 August 2022.  He failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of of Vietnam.  He entered Hong Kong illegally in November 2019 and was arrested by police on 11 December 2019 for theft for which he was subsequently convicted and sentenced to prison for 15 months.  On 11 May 2020, he raised a non-refoulement claim alleging that if refouled, he would be harmed or even killed by his creditor and his associates for outstanding debts.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2021] HKCFI 3906).

7.  By a Notice of Decision dated 15 September 2020, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  On 6 October 2020, the applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). His appeal was outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance.  Nevertheless, the Board accepted the late filing of the appeal/petition. 

9.  The applicant, however, failed to attend the scheduled oral hearing on 15 March 2021 before the Board without any explanation.  Accordingly, the Board proceeded to deal with his appeal on paper. By its decision dated 27 April 2021, the Board dismissed the appeal.  For the reasons set out at [29] to [68], the Board found the applicant’s evidence on his loan was vague and lacking in details, and it was not convinced that he had actually taken a loan to start a pig farm and that he was threatened and assaulted by the creditors.  Importantly, the Board found that even if his case were accepted, the applicant’s alleged problem is a private monetary dispute with no state involvement, relevant country of origin information (“COI”) suggested that state/police protection would be available to the applicant upon his return to Vietnam and internal relocation is a viable option to avoid his creditor.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 28 September 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1) of the RHC requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  By then the applicant was out of time with his application by 2 months.  The applicant did not advance any ground for his intended challenge in his Form. His supporting affirmation was written in Vietnamese.  No translation was provided. 

The JR Decision

11.  Be that as it may, a hearing of the application for extension of time to apply for judicial review was fixed before the Judge on 15 December 2021.  However, the applicant failed to attend the hearing and no explanation was proffered.  Accordingly, the Judge proceeded to dispose of the application on paper.  After due consideration of the decision of the Board, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application with reasons set out in [12] - [16] of the JR Decision:

“12. In the Applicant’s case, a delay of 2 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and that he also failed to attend the hearing of his application without explanation. As such and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not find any good reason for his serious delay.

13. 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, 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.

14. 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.

15. 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 his 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.

16. 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.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 17 January 2022 for an extension of time to appeal.  That was dismissed by the Judge on 27 July 2022.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.  As for (1), the applicant was late by 4 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay is insignificant.

15.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he does not know English and needs assistance from his friend to prepare the necessary documents, which caused the delay.  As the delay is insignificant, the focus should be on the prospects of the intended appeal.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. 

17.  In the Summons and supporting affirmation filed with this Court, the applicant did not advance any proper or valid proposed grounds of appeal. 

18.  The applicant attached a statement dated 10 August 2022 with the Summons (“the Statement”).  In the Statement, he repeated his explanation for his delay in filing his appeal against the JR Decision.  He then stated that all the oral evidence he provided to the Board and the Director were true, they did not investigate his case and the decisions were subjective, unfair and made without regard to his personal safety. 

19.  As the applicant was absent at the Board hearing, he did not in fact give any oral evidence before it.  The Board found there was insufficient evidence on a number of matters.  If the applicant had not been absent, he may or may not have been able to “fill in the gaps”.  But one thing is clear, which is that even on the applicant’s own case, it only involved a private monetary dispute with no state involvement.  Relevant COI suggested that there is reasonable state/police protection and internal relocation is a viable option.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

20.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and has applied the right test as set out in AW v Director of Immigration [2016] 2 HKCA 393 in refusing to grant an extension of time for the application to apply for leave for judicial review and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 10 August 2022.