RE NGUYEN ANH CUONG

CAMP 235/2022

[2022] HKCA 1499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 235 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1780 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  dated 13 May 2020[1] refusing to extend time for the applicant’s application for leave to apply for judicial review and refusing to grant such leave.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 6 April 2018.  In that decision, the Board dismissed the applicant’s appeal against the two decisions of the Director of Immigration (“Director”)  dated 2 June 2016 and 5 July 2017 respectively rejecting his non-refoulement claim.

2.  On 4 November 2021, the Judge refused to extend time for the applicant to appeal against his decision.[2]

3.  Although the applicant’s summons in this court is in Chinese, the decisions of the Director, the Board and the Judge were all in English.  We have therefore issued this judgment in English.  The applicant will be notified (in Chinese)  that if he has any difficulty in understanding this judgment, he may obtain assistance from the court’s interpretation service.

Background

4.  The applicant is a Vietnamese national.  He first came to Hong Kong in 1989 as one of the “boat people”.  He was not found to be a refugee at that time after screening by the United Nations High Commissioner for Refugees.  He came illegally to Hong Kong 6 times thereafter between 1997 and 2009, each time remaining undetected for between a few months and 1.5 years, before being arrested and repatriated.  He entered Hong Kong illegally again in 2010, and was arrested on 8 November 2010.  He was subsequently charged with conspiracy to steal in addition to immigration offences.  On 19 September 2011, he was convicted and sentenced to 64 months’ imprisonment.  On 24 March 2014, the applicant lodged a non-refoulement claim.

5.  The applicant’s claim was based on the fear that he would be harmed or ill-treated by Vietnamese police upon his return because he was regarded as a traitor and had escaped from custody in Vietnam before.

6.  The applicant’s claim was assessed by the Director first with reference to BOR 3 risk,[3] persecution risk,[4] and torture risk.[5]  By a notice of decision dated 2 June 2016, the Director rejected the claim.  The applicant was subsequently invited to submit additional facts relevant to BOR 2 risk,[6] but by a letter dated 22 June 2017 his duty lawyer replied on his behalf that he had no additional facts to submit.  By a notice of decision dated 5 July 2017 the Director rejected the applicant’s claim with respect to BOR 2 risk.

7.  The applicant appealed to the Board against both decisions of the Director.  The hearing of the appeal was held on 1 February 2018, at which the applicant was legally represented and gave evidence and answered questions from the Board.  The Board found the applicant dishonest and unreliable, mainly because of his delay in raising a non-refoulement claim during the several periods when he had sneaked into Hong Kong and managed to remain here at some length.  Accordingly, the Board considered it could not place weight on the applicant’s allegations.  The Board also took the view that even on the applicant’s own evidence, there had been no sufficient level of harm inflicted on him that warranted non-refoulement protection on the applicable grounds.  In the result, in its decision dated 6 April 2018, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

8.  On 30 August 2018, which was beyond the 3-month time limit prescribed by Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A), the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The applicant did not specify any ground for judicial review in the Form.  In the accompanying affirmation, he stated that he had told the Board that he was arrested for taking part in illegal protests in Vietnam and that whilst in custody he was assaulted, as a result of which his front tooth was broken.  He said that the Board did not know how he was treated during custody, and that the decision was unfair.

9.  The Judge held a hearing which was attended by the applicant on 27 November 2019.  On 13 May 2020 the Judge issued his decision, refusing to extend time and to grant leave to apply for judicial review.  The reasons were set out at [13] – [17] of the Form CALL-1 as follows:

“ 13. The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

14. As the Board did not accept his evidence, he has no factual basis in support of his application.

15. As to his complaint that the Board did not consider his ill-treatment by the police officers when he was arrested for protest, the Board had taken this issue into consideration in paragraph 7 of the Board’s Decision. It held that there was no documentary or other objective evidence to prove his injury, which, coupled with other evidence demonstrating that he was not an honest or reliable witness such as that he did not raise his claim for protection immediately arriving in Hong Kong, not until three and a half years after his arrival, it did not accept his evidence. The Board was entitled to take those factors into consideration when it assessed his credibility.

16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.   The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

10.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 27 October 2020 to seek an extension of time to appeal against the decision of the Judge.  In the affirmation in support he did not explain the delay, but simply briefly repeated the factual basis of his claim for protection.

11.  After considering the application on the basis of the documents alone, the Judge gave his decision in writing on 4 November 2021, refusing to grant an extension of time to appeal as he did not see any realistic prospect of success in the intended appeal.

The renewed application before this Court

12.  Over 8 months later, by summons filed on 7 July 2022, the applicant made another application for extension of time from this court for him to appeal against the decision of the Judge refusing to extend time and grant leave for judicial review.  In the accompanying affirmation, the applicant again merely briefly repeated the factual basis of his claim for non-refoulement protection.

13.  The applicant has failed to lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 7 July 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The delay of 5 months until 27 October 2020 was very substantial. Furthermore, the applicant delayed for another 8 months before renewing his application for extension of time in this court.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

15.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, after hearing from him and asking him questions, the Board found the applicant’s evidence lacking in credibility.  The Board eventually came to the conclusion that the applicant faced no real risk of harm of the requisite level should he return to Vietnam.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law errors, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision.  The applicant has failed to advance any such public law grounds; nor can we see any from the materials before us.

16.  The role of this court as the Court of Appeal is not to rehear the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal against the Court of First Instance’s decision based on the grounds of appeal advanced.  The applicant has failed to specify any ground of appeal or show how the Judge has erred in refusing to extend time and refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

17.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.