Re Dinh Khac Nam

HCAL 1658/2021

[2022] HKCFI 2793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1658 OF 2021

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  16 September 2022

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D E C I S I O N

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Introduction

1.This is the Applicant’s application by summons filed on 23 June 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge P Li (“DHCJ P Li”) dated 24 March 2022 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 28 May 2021 refusing his request to make a subsequent claim under section 37ZO(2) of the Immigration Ordinance (Cap 115).

2.By way of background, the Applicant had made a previous claim for non-refoulement protection in 2014 based on his fear of being harmed or killed by his stepfather and moneylender. His claim was dismissed by the Director, primarily because there was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life; and that reasonable state protection and internal relocation were available to mitigate the harm and risk. He was repatriated to Vietnam on 31 October 2017. He sneaked into Hong Kong again in November 2020 and made a request to file a subsequent claim based on his fear of being harmed or killed by another moneylender arising from his inability to repay another loan. The Director refused his request because there was no substantial change in the availability of state protection and internal relocation options since his previous claim was determined. The Applicant sought leave to apply for leave to apply for judicial review of that decision of the Director (the “leave application”). His leave application was refused by DHCJ P Li. He now seeks extension of time to appeal DHCJ P Li’s Order.

3.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board / non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing 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.

Length of delay and reasons for the delay

4.By 23 June 2022 when the Summons was filed, three months had lapsed since the date of the Order. The application is two and half months out of time. In his supporting affirmation, the Applicant made a bare assertion that he had not received the Order and he did not furnish any ground of his intended appeal. The Court noted that the address he gave in his Summons is the same as the address to which the Order was sent, ie Castle Peak Bay Immigration Centre. To assist him in presenting a proper case for extension of time, this Court gave them directions by letter dated 14 July 2022 to file a statement within 14 days of the letter setting out (a) the date and circumstances when the Order was brought to his attention and invited him to exhibit supporting evidence, such as a copy of the relevant entry in the Prisoners’ Incoming Mail Register from Castle Peak Bay Immigration Centre; and (b) the grounds of his proposed appeal.

5.As at the date of this decision, the Applicant has not responded. The court staff are under very strict instructions to ensure that court orders are issued on the date as stated in the orders. The delivery service of Hong Kong Post is usually very reliable. The detention facilities of the Immigration Department have records of receipt and delivery of its detainees’ mails. The Applicant’s attention had been drawn to the existence of such records to support his allegation. His failure to respond suggests there is no truth in his allegation of non-receipt. He has no explanation for a very substantial delay.

Prospect of success of the intended appeal

6.In his supporting affirmation, the Applicant made a bare allegation that “the decision made by DHCJ P Li has been reached unfairly without allowing [him] an opportunity to clarify [his] case and situation in my country”. The Form Call-1 indicates clearly that the Applicant attended the hearing before DHCJ P Li, sought leave to produce additional evidence, namely a covering letter and two documents, and made submissions. The court record also indicates that he had exchanges with the bench. I have listened to the record of proceeding. DHCJ P Li invited the Applicant to make submissions three times. In response to the first invitation, the Applicant repeated his case that he will be killed and sentenced to death pursuant to Article 251 of the Vietnamese Criminal Code. In response to the second invitation, he confirmed that he had no complaint against the Director or anybody else and that he only urged to be allowed to stay in Hong Kong for refuge. In response to the third invitation, he replied that he had nothing else to submit. His complaint of procedural unfairness is a pure fabrication without any factual basis.

7.Despite the Court’s specific request for the grounds of his intended appeal, the Applicant did not respond. The inference is that he has no arguable grounds of appeal. Without even knowing what his grounds of appeal are, it is very difficult to assess the prospect of success of the intended appeal.

8.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-maker in a request for filing a subsequent non-refoulement claim is the Director. He alone assess the evidence and find facts including whether there has been a significant change of circumstances since the previous claim was finally determined and whether the change, together with the material previously submitted, would give the subsequent claim a realistic prospect of success as required by section 37ZO. In a judicial review of that decision, the court will scrutinize the Director’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. Thus, in the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review and in an application to appeal that decision out of time, the best the court can do is to re-assess that decision focusing on the above vitiating elements.

9.I have rigorously re-examined the Form Call-1, the Director’s decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Director had correctly set out the law and key legal principles relating to the making of a subsequent claim; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. I am satisfied that the Director’s decision has not been so vitiated. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

10.The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to furnish his grounds of appeal, the Applicant has failed to do so. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.For the above reasons, the application for extension of time to appeal is refused.

The applicant is not represented