Le Toan Thang v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CAMP 577/2021

[2022] HKCA 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 577 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1131 OF 2021)

________________________

________________________

Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  28 December 2021

Date of Judgment:  6 June 2022

________________

J U D G M E N T

________________

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

1.This is the Applicant’s application for “leave to appeal” out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 November 2021 refusing to grant to the Applicant an extension of time to appeal against his earlier order dated 5 October 2021 refusing to grant leave to the Applicant to apply for judicial review.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The Applicant is a national of Vietnam. He first came to Hong Kong illegally in February 2019, and was arrested by the Police and repatriated. On 17 March 2020, he was again arrested by the Police and charged with the offences of theft and remaining in Hong Kong without the authority of the Director of Immigration. He was convicted and sentenced to 15 months’ imprisonment. The Applicant then raised a non-refoulement claim on the basis that if he was refouled, he would be harmed or killed by his creditor from whom he had borrowed 500 million Vietnamese currency. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

4.By a Notice of Decision dated 9 November 2020, the Director of Immigration (“the Director”) dismissed the Applicant’s non-refoulement claim on the following applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.The Applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”). On 13 May 2021, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

6.The Board found that the Applicant’s evidence relating to the facts on which his claim was based was questionable and unreliable, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

7.On 11 August 2021, the Applicant filed his Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.On 5 October 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§15-17 of the Form CALL-1, the Judge stated as follows:

“15. His grounds in support of this application do not assist his application. The Board was quite justified to reject his evidence after its evaluation of his evidence.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

9.On 15 November 2021, the Judge dismissed the Applicant’s summons of 27 October 2020 seeking an extension of time to appeal against his earlier order of 5 October 2020.

THIS APPLICATION

10.By a summons taken out on 21 December 2021, the Applicant applied for “leave to appeal” out of time against the order of the Judge dated 15 November 2021. In his supporting affirmation filed on 21 December 2021, the Applicant complained that the decision of the Judge was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country. In his statement filed on the same date, he claimed that it was unsatisfactory that the Court of First Instance ruled that he had no chance of success in reviewing the Board’s Decision.

11.In his 8-page written submissions dated 28 December 2021, the Applicant repeated the background of his case. He set out or referred to some general legal principles and cases relating to non-refoulement claims, but failed to explain how they applied to his case. He also complained that the Board acted in a procedurally unfair manner without properly assessing his credibility, and that the Immigration Department did not consider his human rights. These are general assertions without particulars or elaboration.

DISCUSSION

12.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

13.In deciding whether to grant an extension of time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.The prospect of success of an intended appeal is important. The court will not grant extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.The court’s 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.

16.In respect of the Applicant’s allegation that the decision of the Judge was reached unfairly without giving him an opportunity to clarify his case and the situation in his country, we note that the Applicant did not request for an oral hearing of his application for leave to apply for judicial review, and thus the Judge dealt with his application on paper pursuant to Order 53, rule 3(3) of the Rules of the High Court. The Applicant has not pointed to any other alleged error in the Judge’s decision dated 5 October 2021, or raised any viable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.The application for extension of time to appeal is refused, and the Applicant’s summons of 21 December 2021 is dismissed.

The Applicant, acting in person