RE HOANG NGOC CHUNG

CAMP 324/2022

[2023] HKCA 32

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 324 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 351 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 April 2022[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 34.  He entered Hong Kong on 1 July 2012 and was given permission to remain as a visitor for one week.  On 3 July 2012, he married a Hong Kong resident and later made an application for a dependant visa.  He withdrew the application on 30 March 2015, after he had a divorce.  He did not leave Hong Kong when his permission to stay expired on 31 March 2015.  He was arrested by the police on 21 February 2016.  He later raised a non-refoulement claim based on his fear of being harmed or killed by his creditor due to his inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By his decision dated 8 May 2018, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 29 October 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 7 January 2019, the Board dismissed the appeal.  For the reasons set out in [36] to [46] of the decision, the Board found there were material discrepancies between the information given by the applicant to the Director and his evidence given to the Board.  The Board had grave doubt on the applicant’s credibility and did not accept his evidence.  The Board further held that, even on the applicant’s case, the applicant only sustained minor injuries and it is unlikely that he will suffer severe ill-treatment or serious harm upon his return to Vietnam. The Board also considered that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk that the applicant may face.  The Board concluded that the claim failed on all applicable grounds.

8.  On 8 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any ground for seeking relief in both documents.   

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 13 April 2022, he refused to give leave to apply for judicial review for the reasons set out in [9] to [13] as follows:

“9. On 8 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation, nor did he request any oral hearing for his application. As such 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 reasonably arguable basis for his intended challenge.

10. 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.

11. 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.

12. 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.

13. 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.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 29 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge applicant was absent at the oral hearing on 3 August 2022.  By his decision handed down on 17 August 2022[6], the Judge refused the application. 

12.  On 30 August 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of 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. 

14.  The applicant was late by two days, which is not a significant delay.  In the application for extension of time made to the Judge, the applicant explained the delay on the basis that the Judge’s order was written in English which he did not understand, he was not aware of the deadline for appeal, and he needed help from his friend to complete the documentation but his friend could only help him when he had time.  We accept that the applicant may not be familiar with the legal process and may have difficulty understanding English.  Since it is a short delay, we are prepared to excuse the delay and will focus on the merits of the applicant’s intended appeal.    

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant did not set out any grounds for his application in the summons.  In the supporting affirmation, he only asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time.  There is, however, no elaboration of what the ground of appeal is about.  The applicant has failed to identify any basis on which the appellate court may disturb the Judge’s decision.

18.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.           

19.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 30 August 2022.