UONG VAN LAP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 162/2024, [2025] HKCA 922

On appeal from [2024] HKCFI 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1288 OF 2019)

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J U D G M E N T

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

1.  On 15 February 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 3 June 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 14 August 2024[2].  

3.  On 23 August 2024, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the order dated 14 August 2024. This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 15 February 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 3 September 2015. He was arrested by the police on 5 September 2015 and a deportation order was issued against him on 23 September 2015. He lodged a non-refoulement claim on 29 September 2015 on the basis that, if refouled, he would be harmed or killed by his creditor because he is unable to repay the debt.

The decisions of the Director and the Board

5.  By a Notice of Decision and a Notice of Further Decision dated 5 August 2016 and 21 December 2016 respectively, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 18 April 2019[7]. The Board did not accept the applicant’s evidence as it is vague and inconsistent. The Board further held there is insufficient evidence to show any real risk of harm because the previous injuries he suffered were not serious. In addition, the Board held that reasonable state protection and internal relocation options are available to the applicant in Vietnam which further lower or negate the perceived risks. Therefore, the Board rejected the appeal and confirmed the Director’s decisions on 10 May 2019.

The intended judicial review

7.  On 14 May 2019, the applicant filed a Form 86 and an affirmation in HCAL 1288/2019 to seek leave to bring judicial review against the Board’s decision. He only reiterated the problems he faced in Vietnam without putting forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision 

8.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request for an oral hearing. The judge found there is no error of law, procedural unfairness or irrationality in the Board’s decision. The judge further found no evidence to show there is a reasonable prospect of success in the intended judicial review. Therefore, the judge dismissed the leave application on 15 February 2024.

Analysis

9.  In considering whether to extend time for appealing against a decision refusing 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.

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 15 February 2024 and the applicant was late by more than 3 months when he took out the summons at the court below on 3 June 2024. The delay is substantial. He explained that he did not have financial means to obtain concrete legal advice regarding the procedure of appeal and none of his close friends can read Chinese so none of them can help him with the application.

11.  It is noted that the applicant’s original leave application was written in English while the judge’s decision was written in Chinese. Even if this court is minded to accept the applicant’s explanation that his delay in filing his appeal is caused by the language problem he faced, the court would still assess whether he can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  In the present application, the applicant did not put forward any grounds for his intended appeal against the judge’s decision. He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. He also failed to adduce any reliable evidence to refute the Board’s findings and failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board.

15.  For the above reasons, there is no prospect of success in the intended appeal. Therefore, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 15 February 2024 and dismiss the summons filed on 23 August 2024.