Dang Van Tuan v. Torture Claims Appeal Board

CAMP 103 /2022

[2022] HKCA 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 516 OF 2018)

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  26 April 2022

Date of Judgment: 11 August 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 23 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant for seeking judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim^[1].

2.On 23 October 2020, the applicant filed a summons for leave to appeal out of time against the Judge’s decision.  The applicant’s summons was dismissed by the Judge on 25 March 2021^[2].

3.On 13 April 2022, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the decision dated 25 March 2021 and for leave to advance a new ground of appeal.  This summons should be treated as a renewed application for leave to appeal out of time against the judge’s decision of 23 July 2020 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.The applicant is a national of Vietnam.  He is 28 years old.  He entered Hong Kong on 28 November 2013 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department on 11 December 2013.  On 12 April 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Vietnam because he fails to repay the loan.

The decisions of the Director and the Board

5.By a Notice of Decision dated 20 July 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5].  On 1 August 2016, the applicant appealed against the Director’s decision to the Board. 

6.By a Notice of Further Decision dated 18 July 2017, the Director rejected the applicant’s claim on BOR 2 risk^[6].

7.The applicant attended the hearing of his appeal against the Director’s decisions before the Board on 30 January 2018.  The Board considered the appeal on all applicable grounds.  It was found that the applicant’s testimony was vague, lacking in particulars and contradictory and his evidence was inconsistent.  The Board held that the applicant failed to establish the factual basis of his claim.  The Board further considered that the feared risk of harm is low as there was no evidence to show that the creditor would harm the applicant in that the alleged previous injuries were not serious and there is nothing to show that the creditor was still looking for the applicant after the lapse of 5 years.  It was noted that the applicant’s problem arose from a private dispute and there is no evidence of any involvement of the state.  The Board also held there is no evidence to show that the applicant would not receive reasonable state protection in Vietnam and considered that the applicant should be able to relocate to other places in Vietnam to avoid the feared risk of harm.  Therefore, the Board dismissed the appeal on 22 March 2018.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 28 March 2018 for leave to apply for judicial review against the decision of the Board.

The judge’s decision

9.The Judge dealt with the application on paper as the applicant did not request for an oral hearing.  The applicant only stated in his affirmation that his life is not safe, without putting forward any specific ground for his intended challenge.  Nevertheless, the judge reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny.  The judge concluded that there is no error of law or procedural unfairness in either of the decisions, nor any failure on the part of the decision makers to apply high standards of fairness in their consideration and assessment of the applicant’s claim. Therefore, the judge held that there is no prospect of success in the applicant’s intended application for judicial review and dismissed the leave application on 23 July 2020.

Grounds of intended appeal

10.The applicant stated the following grounds in his affirmation filed in support of the present application:

(1)  The decision of the court was reached unfairly without allowing him the opportunity to clarify his case and the situation in his country.

(2)  The merits of the ground of appeal constitute sufficient justification for the court to exercise its discretion in allowing this appeal out of time.

(3)  His cousin just told him that he could not return to Vietnam as the creditor was threatening his family and his life is still in danger.

11.The applicant’s further contentions in his written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

(3)  If he is forced to be repatriated, his life will be in danger.  Creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people.

(4)  The Director did not consider the human rights under the Basic Law or Hong Kong Human Rights and Democracy Act, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

12.In considering whether to extend time for appealing against a decision refusing 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.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 23 July 2020.  The applicant was late by more than 6 weeks when he took out a summons for leave to appeal out of time at the court below on 23 October 2020.

14.Pursuant to Order 59, rule 14(3) of the Rules of the High Court (Cap. 4A), where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. The applicant’s application for extension of time to appeal was refused by the court below on 25 March 2021.  He was late for more than 11 months when he made the present application to the Court of Appeal on 13 April 2022.  The applicant did not provide any explanation for his substantial delay in applying to the Judge for extension of time to appeal and in making the present renewed application.

15.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

16.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  

17.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.  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.

18.The applicant’s grounds and submissions are not reasonably arguable.  As the applicant did not request for an oral hearing in his Form 86, the judge was entitled to consider his application on paper. Pursuant to Order 53 Rule 3(3) of the Rules of the High Court, the judge may determine the application for leave without a hearing.

19.The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  He has not put forward any viable ground for challenging the Board’s findings.  Given the Board’s rejection of his claims, his assertion that he will be in danger if refouled has no factual basis. 

20.As there is no prospect of success in his intended appeal, we refuse to extend time for the applicant to appeal against the judge’s decision of 23 July 2020.  The summons filed on 13 April 2022 is dismissed.

The Applicant, acting in person

[1]  [2020] HKCFI 1485

[2]  [2021] HKCFI 689

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6]  This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.