RE NGUYEN PHIEN HIEU

CAMP 349/2022

[2023] HKCA 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 349 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 393/2021)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 26 January 2022 refusing to extend time for the applicant to appeal against his decision dated 21 May 2021 refusing to extend time for the applicant to apply for leave to apply for judicial review and refusing to grant such leave. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 12 October 2018 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 15 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 27 April 2015, and surrendered to the Immigration Department on 29 April 2015.  On the same day, he raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 15 November 2016, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 10 August 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board cast doubt on the applicant’s credibility due to the inconsistencies and discrepancies in his evidence.  In any event the Board considered that suitable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 19 March 2021 out of time, seeking to judicially review the Board’s Decision.

7.  In his supporting affirmation, the applicant deposed that the decisions reached by the Director and the Board were “grossly unfair and unjust” and that he could not return to his home country.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing to extend time at [9] to [17] of the CALL-1 Form:

“9.  On 19 March 2021 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, and in his supporting affirmation of the same date he merely stated that he does not agree with the decision as grossly unfair and unjust in refusing his claim but without providing any details or particulars or elaboration how it was so or any other proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1)  of the High Court Ordinance, Cap 4 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.

11.  As the last day of the three-month period for him to file his Form 86 fell on 12 January 2019, the Applicant was therefore more than 2 years late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration [2016] 2 HKCA, 393.

12.  In the Applicant’s case, a delay of more than 2 years must be considered as extremely inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to find any good or valid reason for his serious delay.

13.  As for the merits, if any, of his intended application, as noted above, the Applicant has also failed to put forward any proper ground for his intended application, 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.

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 parts 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 in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The present application for extension of time to appeal

9.  The applicant’s last known address as stated in his Form 86 was at Castle Peak Bay Immigration Centre.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Castle Peak Bay Immigration Centre on 21 May 2021, but these were returned undelivered.

10.  The Immigration Department however informed the court on 7 June 2021 that the applicant’s last known address was at Ki Lung Street, Sham Shui Po (“the Address”).  Another letter enclosing a copy of the CALL-1 Form was sent to the Address on 8 June 2021, and this was not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  By the time the letter of 8 June 2021 was sent to the applicant at the Address, the 14-day period had already lapsed.

12.  In any event, the applicant did not file a Notice of Appeal, but did on 9 August 2021 (i.e. around 2 months after the letter was sent to him at the Address)  take out a summons in the Court of First Instance seeking extension of time to appeal, in which his address was stated to be the Address.  In his supporting affirmation filed on the same date, he deposed that his life and wellbeing were in danger in Vietnam, and that he had used Hong Kong as a safe haven from any risk of harm.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 26 January 2022[6].

14.  By a summons filed nearly 9 months later, on 14 September 2022, the applicant issued the summons that is now before us.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on “26 January 2022”, being the Judge’s refusal to grant an extension of time for the applicant to appeal against his decision dated 21 May 2021.  Although in his summons the applicant purported to seek leave to appeal out of time against the decision of the Judge dated 26 January 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 21 May 2021, by which leave for judicial review was refused.

15.  In his supporting affirmation, the applicant stated that the decision made by the “High Court” was reached unfairly without allowing him an opportunity to clarify his case.

16.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is therefore debarred from lodging and relying upon any written submissions.

17.  However, on 14 September 2022 (i.e. the date of the summons of the present renewed application)  the applicant lodged, without leave, a “Statement” setting out his submissions in support of this application.  We have considered this “Statement”, in which he stated that:

(1)  he was released from Castle Peak Bay Immigration Centre “sometime in March 2021” when he then moved to “a residential address” but that he was only informed of the Judge’s decision by an immigration officer and that he did not receive it in the post;

(2)  his life would be threatened if he returned to Vietnam; and

(3)  the conclusions reached by the Board were “completely without the objective basis of [his] case”.

Discussion

18.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

19.  Even if we are prepared to accept that the applicant was released from the Castle Peak Bay Immigration Centre in March 2021, and therefore the court’s letter sent to the Immigration Centre on 21 May 2021 was returned by reason that he was no longer detained there, it was incumbent on him to inform the court of his new address, and the consequences of his failure to do so must rest with him.  Moreover, the second letter from the court sent to him at the Address on 8 June 2021 was not returned undelivered and the inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision as from that date, albeit that by then the 14-day period in which he was allowed to appeal had already lapsed.

20.  Despite having had notice of the Judge’s decision as from around 8 June 2021, the applicant did not take out the application for extension of time to appeal in the court below until 2 months later, on 9 August 2021.  The applicant has failed to provide any or any reasonable explanation for this delay.  Furthermore, the applicant did not take out the present renewed application before this court until more than 8 months after the Judge’s refusal to extend time for the applicant to appeal.  This delay is substantial, unexplained and unacceptable, and the application is liable to be dismissed on this basis alone.

21.  We propose however to nonetheless consider the merits of the intended appeal.  

22.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  We also do not see any merit in the applicant’s complaint of a lack of opportunity to present his case to the Judge, as he did not in fact request for an oral hearing of his application for leave to apply for judicial review, which was therefore dealt with by the Judge on paper.

26.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 14 September 2022 is accordingly dismissed.