RE BUI VAN TUAN

CAMP 136/2022

[2022] HKCA 1763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 661 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 3 May 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 8 July 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 1854) (“the EOT Decision”) against the Deputy Judge’s earlier order dated 18 September 2020, refusing his application for leave to apply for judicial review ([2020] HKCFI 2324) (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 27 November 2019 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 31 March 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 claimed to have last entered Hong Kong illegally on 4 February 2016.  On 3 March 2016, he was arrested by the police and transferred to Castle Peak Bay Immigration Centre for investigation on the next day.  On 11 January 2016, he lodged a non-refoulement claim on the basis that he would be killed or harmed by his creditor owing to his failure to repay the loan.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] and [6] of the Leave Decision.

5.  By a Notice of Decision dated 31 May 2017, 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.  On 8 June 2017, the applicant appealed against the Director’s Decision to the Board.  On 28 June 2019, he attended an oral hearing before the Board and a Vietnamese interpreter was present to provide language assistance.  The applicant elected not to give evidence and only confirmed the truth and correctness of all the evidence in the hearing bundle before the Board.[5]  On 27 November 2019, the Board dismissed his appeal.

7.  In essence, the Board found that there was no medical evidence by the applicant to substantiate his case that he was assaulted and injured in the manner as alleged.  The Board also found that there was no or insufficient evidence to suggest that the creditor and his subordinates had any connection with the Vietnamese government.  The Board was of the view that the matter was a private loan dispute and state protection and internal relocation would be available to the applicant upon his return to Vietnam.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

8.  On 17 April 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.[6] The applicant did not specify any ground of review in his Form 86 and in his supporting affirmation, he only claimed that he could not repay his loan and the mafia would kill him upon his return to Vietnam.  As the applicant did not request for an oral hearing, the Deputy Judge dealt with his application on paper.

9.  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. On 28 May 2020 the Court wrote to the Applicant to ask him to confirm that it is this decision of the Board that he intends to apply for judicial review, and if so he may submit additional information or representation for his appeal within 14 days, and that he may also request an oral hearing for his appeal if he so wished, otherwise his application would be dealt with on paper as he had originally indicated.

13. No response has been received from the Applicant, and in the circumstances I proceeded to deal with his application on paper and in his absence, but as noted above, he has not put forward any proper ground for his intended challenge. 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.

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 decision 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.

17. 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.”

The EOT Decision

10.  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.

11.  On 6 May 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over seven months late with his intended appeal.  In his summons and supporting affirmation, he contended that he did not receive “the notification for appeal previously”.  The applicant also attended an oral hearing before the Deputy Judge on 23 June 2021, where he contended that his landlady only gave him the letter containing the Leave Decision many months afterwards and by then he was already out of time with his intended appeal.

12.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent to the applicant’s last reported address on the same day without being returned through undelivered post.  The Deputy Judge was of the view that the applicant failed to provide good reason for his very substantial and excessive delay.  In the absence of any error in the Leave Decision being clearly and properly identified by the applicant, the Deputy Judge did not see any prospect of success in his intended appeal.  As such, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation filed on 3 May 2022, the applicant applied for leave to appeal against the EOT Decision.  No ground of appeal was specified in his summons.  In his supporting affirmation, he claimed that the Deputy Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 3 May 2022, the applicant lodged his written submissions on 17 May 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He then cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He then contended that internal relocation in Vietnam would be unfeasible as his health was not good, that he was not an active person and near retirement age and there would be many difficulties and obstacles he would have to face.  He further claimed that the Immigration Department did not consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights and ordered for his deportation.  He asserted that his life would be in danger and he would be killed if deported back to Vietnam.

Discussion

15.  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.

16.  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].

17.  We consider that the applicant’s delay of over seven months was very substantial and the applicant simply failed to give any good reason for his delay.  This Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  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].

19.  We are of the view that his intended appeal is wholly without merits.

20.  As a start, his allegation that the Leave Decision was reached unfairly without allowing him the opportunity to clarify his case and situation in his own country is without basis.  The applicant already had ample opportunities to present his case before the Deputy Judge.  As noted at [12] of the Leave Decision, in the Court’s letter dated 28 May 2020 to the applicant, the Court notified the applicant that he might submit additional information or representation for his appeal within 14 days, and that he might also request an oral hearing for his appeal if he so wished, otherwise his application would be dealt with on paper as he had originally indicated.  However, the applicant did not respond to this letter and did not file any additional information or written submissions in support of his application for leave to apply judicial review.  It was on this basis that the Deputy Judge proceeded to determine his application for leave to apply for judicial review on paper based on the materials before him.  There is plainly no procedural unfairness in the Leave Decision.

21.  As to the allegations in his written submissions, they are all directed at the Board and the Director and in any event, are vague, general and unsupported by specific particulars.  His complaints are also all new and not raised before the Deputy Judge.  This is not permissible now to be run in the intended appeal: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

22.  In any event, those submissions are without substance.  General and bare assertions on his fear if refouled to his home country plainly do not constitute valid grounds of appeal.  The applicant also failed to identify with specific particulars how the legal provisions and authorities cited in his written submissions are relevant to his case.

23.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

24.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 3 May 2022 dismissed.