RE NGUYEN BUI TUYEN

CAMP 203/2022, [2023] HKCA 1012

On Appeal From [2021] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 203 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1126 OF 2018)

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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 28 January 2021, DHCJ C P Pang (“the Judge”)  refused to grant an extension of time for leave to the applicant to apply for judicial review concerning his 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 (“CFI”)  on 30 March 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Bruno Chan on 8 July 2021.

3.  On 20 June 2022, the applicant filed his summons in CAMP 203/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the decision made by DHCJ Bruno Chan dated 8 July 2021.  However the correct approach is to treat this summons 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 20 June 2022, the applicant should lodge his written submissions in support of the Summons on or before 4 July 2022.  However, 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 Vietnam. He entered Hong Kong illegally on 3 March 2015 and was arrested by the police.  He was then referred to the Immigration Department for investigation and on 7 March 2015, he raised his non-refoulement claim alleging that if refouled, he would be harmed or even killed by his creditor as he was unable to repay a debt.  The creditor had come to his house with some people and vandalized it, beating him up as well.  The factual background of this case was succinctly summarised by the Judge at [2] to [3] of the JR Decision ([2021] HKCFI 183).

7.  By a Notice of Decision dated 27 January 2017, 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.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The Board disposed of the appeal on paper and by its decision dated 4 January 2018, the Board dismissed the appeal.  For reasons set out at [23] to [46], the Board found that the applicant’s claim only involved a private and personal dispute with his creditor, with no state involvement.  The applicant did not sustain any serious harm or injury over the claimed assault by his creditor.  Relevant country of origin information showed that there is reasonable state protection and internal relocation is a viable option.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 19 June 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A)  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 the time the application was taken out, it was late by more than 2 months.  In the applicant’s supporting affirmation, he only repeated his claim that he would be harmed or even killed by his creditor as he is unable to repay his debt.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Board’s decisions, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application, for reasons set out in [11] - [26] of the JR Decision:

“11. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

Application out of time

13. It must be pointed out first that the applicant’s intended application for judicial review was made out of time. Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A 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 unless the court considers that there is good reason for extending the period within which the application shall be made. In considering whether to extend time, the court will have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14. The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

15. In this case, even just counting from the 3-month time limit which ended on 4 April 2018, the application was late by more than 2 months. The delay was substantial. The applicant did not request extension of time or give explanation for the delay. I cannot find any good reason for the undue delay.

Merits of the intended application

16. Nevertheless, I will also consider the merits of the intended judicial review. Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

17. In the present case, the Board did not take issue with the applicant’s asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

18. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

19. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness.

20. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

21. Indeed, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm.

22. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled.

No oral hearing before the Board

23. The Board did not hold an oral hearing. It was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277. The Board had reminded itself of the relevant authority and principles on oral hearings and considered that it was not necessary to have one in the present case. The Board gave detailed explanation for such decision [16-21]. It correctly applied the principles and considered all relevant factors for its decision.

24. There was no challenge with regard to procedural regularity and fairness. Bearing in mind that the applicant personally attended the screening interview with the immigration officer with legal assistance and the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

25. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

26.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the CFI on 30 March 2021 for an extension of time to appeal.  That was dismissed by DHCJ Bruno Chan on 8 July 2021.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, 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). 

13.  As for (1), the applicant was late by more than 6 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the CFI.  His delay was not short.

14.  As for (2), the reasons for the delay, the applicant failed to give any explanations whether in his summons or supporting affirmation, nor did he attend the hearing of his summons in the CFI. He only asserted in his affirmation in support of the Summons in this court that the merits of his ground of appeal constituted sufficient justification for the court to exercise its discretion to allow the appeal out of time.  However, in a statement attached to the Summons, he alleged that he did not receive “any letter from the court” and did not know that his application for judicial review had been refused.  This statement was not deposed to in any affirmation, and in any event, the court record showed that the JR Decision was sent to his last reported address without being returned through the post.  It is incumbent on the applicant to provide the court with his up-to-date address, and failure to do so is not a satisfactory reason for delay.   

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  In the statement, he repeated the factual background of his claim and sought to challenge the Director’s decision.  There was no challenge to the JR Decision, nor was there a “new sole ground of appeal” as stated in the Summons.

16.  Further, the role of the court in a judicial review is not to provide a further avenue of appeal of the findings of the Director and the Board or to re-assess the non-refoulement claim afresh. Assessment of evidence and risk of harm are primarily within the province of the Director and the Board on re-hearing, and the court will scrutinize the Board’s decision (which superseded the Director’s decision upon the claimant’s appeal against the Director’s decision)  and intervene by way of judicial review only for errors of law or procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  It is clear from the Board’s decision that on the basis of the applicant’s case, the Board found that it was only a private loan dispute without any state involvement, and the applicant did not suffer any serious harm or injury that would qualify him for non-refoulement protection on any of the applicable grounds.  These were facts which the Board was entitled to find, and the Judge was correct to find no basis to intervene.

18.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and he had applied the right test as set out in AW v Director of Immigration [2016] 2 HKC 93 in refusing to extend time for the application for leave to apply for judicial review.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse the leave application. 

19.  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 20 June 2022.