Dinh Khac Phi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 112/2022

[2022] HKCA 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 112 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 893 OF 2018)

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BETWEEN

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Before:  Hon G Lam and Chow JJA in Court

Date of Written Submissions:  3 May 2022

Date of Judgment:  3 August 2022

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J U D G M E N T

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

1.On 19 April 2022, the Applicant took out a summons with a supporting affirmation to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 21 January 2022 refusing to grant to the Applicant an extension of time to appeal against the Judge’s earlier order dated 17 November 2021 (“the Order”), whereby the Judge refused to grant leave to the Applicant to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 18 October 2017, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 December 2016.

3.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

4.The Applicant is a national of Vietnam.  He entered Hong Kong illegally from China on 24 November 2014 and surrendered himself to the Immigration Department on 25 November 2014.  On the same date, he lodged a non-refoulement claim by way of a written representation, claiming that if he was refouled, he would be harmed or killed by his creditors for failing to repay his debts.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 3366).

5.By a Notice of Decision dated 30 December 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.The Applicant appealed the Director’s decision to the Board.  On 18 October 2017, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board considered that, even on the Applicant’s own evidence, the threats from his creditors were purely verbal without any physical harm inflicted on him.  Further, the Applicant’s disputes with his creditors were private in nature.  The Applicant had never sought help from law enforcement agencies or the government of Vietnam.  The Board considered that state protection was available, and in any event, internal relocation was an option open to the Applicant.

JUDGE’S DECISION

7.On 21 May 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.On 17 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“11. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

…

14. His grounds in support of this application do not assist his application. The Board had considered the relevant authority before deciding that an oral hearing was not necessary, which is permissible under the Ordinance. The Board did not question his credibility or raise any issue on the facts he alleged. On those accepted facts, the Board applied the relevant laws to his case. There is nothing amiss in his decision. The Board can rely upon the country of origin information, which says that the Vietnamese government is endeavouring to combat corruptions in Vietnam. The Board is entitled to rely upon the information. It is not necessary for the adjudicator to live in Vietnam for the information. The Board had not underestimated his risk because it had accepted the applicant’s alleged facts.

15. 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.”

9.On 21 January 2022, the Judge refused the Applicant’s application by summons dated 21 December 2021 for an extension of time to appeal against the Order.

THIS APPLICATION

10.By a summons taken out on 19 April 2022, the Applicant applied for leave to appeal out of time against the Judge’s order of 21 January 2022.  In his supporting affirmation filed on the same date, the Applicant stated that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country, and the merits of this ground of appeal constituted sufficient justification for the court to exercise its discretion to allow his application for extension of time. The Applicant also filed a 3-page statement on the same date, stating that he did not receive any letter from the Court and repeating the risks that he would face if refouled back to Vietnam.

11.In his 7-page written submissions dated 3 May 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that he had not yet agreed on a repayment plan with his creditors and requested that his deportation be postponed.  He further complained that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

12.Following the approach 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 against the Order.

13.In deciding whether to extend time to appeal, this 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 to appeal 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.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 17 November 2021, and has failed to raise any viable ground of appeal against the Order. His complaint that the Judge did not give him an opportunity to clarify his case and situation in his home country is without substance.  He did not request for an oral hearing of the leave application.  Accordingly, the Judge was justified to consider the application on paper.

17.The Applicant’s intended appeal has no merits and no reasonable prospect of success.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons of 19 April 2022 is dismissed.

The Applicant, acting in person