Nguyen Van Thanh v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CAMP 207/2022

[2022] HKCA 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 207 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2341 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  30 September 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 23 June 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung dated 15 June 2022 refusing to grant to the Applicant an extension of time to appeal against the order of Deputy High Court Judge CP Pang (“the Judge”) dated 4 March 2021 (“the Order”) refusing to grant him leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 November 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 claimed to have entered Hong Kong illegally from Shenzhen on 2 August 2015. He surrendered to the Immigration Department on 4 August 2015, and lodged a non-refoulement claim alleging that, if refouled, he would be harmed or even killed by his creditor (Binh) for being unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§2-3 of the CALL-1 Form ([2021] HKCFI 469).

5.By a Notice of Decision dated 25 November 2016, the Director rejected the Applicant’s non-refoulement claim on the following 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 12 October 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §7 of the CALL-1 Form, as follows:

“The Board gave reasons for rejecting the applicant’s claim. In a nutshell, the Board found the matter only concerns about a private money dispute. The applicant already left Vietnam in 2015. There is no evidence to show that Binh still has the intention to harm the applicant or he is the target of any attack. Even if Binh is still looking for the applicant, he can seek protection of his country. The Board found that there is reasonable state protection available to the applicant. There are no substantial reasons for believing that he would be subjected to torture or ill-treatment, if he is refouled.”

THE JUDGE’S DECISION

7.On 25 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

8.On 4 March 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[10] In the Form 86, the applicant did not set out his grounds for relief sought. In his affirmation in support, he only repeated his claim that his creditor is still looking for him and that the decision of the Board is not fair.

[11] No request for oral hearing has been made. The application is therefore considered on the papers.

[14] In the present case, the Board did not take issue with the applicant’s claimed primary events. It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled. The Board found that reasonable state protection is available to the applicant.

[15] As mentioned above assessment of evidence, risk of harm, and availability of state protection are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

[16] The application form and affirmation of the applicant did not put forward any grounds or evidence in support to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. There is no reasonably arguable basis ground to challenge the findings of the Board.

[17] Indeed, on the applicant’s own account, the past ill treatment was of low intensity and frequency. It did not reach the level of severity required to constitute torture or CIDTP to justify the protection he sought. He did not report the matter to the local police or authorities. He resided in Hanoi uneventfully for 2 months before he left Vietnam. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently reasonable.

[18]  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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.”

9.On 15 June 2022, Deputy High Court Judge K W Lung refused the Applicant’s application by summons dated 5 May 2022 for an extension of time to appeal against the Order, holding that his delay of over one year to lodge his appeal was serious, and his intended appeal had no realistic prospect of success.

THIS APPLICATION

10.By a summons taken out on 23 June 2022, the Applicant applied for leave to “appeal out of time the order dated 15 June 2022 … dismissing the [application for] leave to apply for Judicial Review” and “to advance a new sole ground of appeal”, without identifying what that ground might be.

11.In his affirmation filed on 23 June 2022, the Applicant stated that the decision made by the High Court had been reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

12.In his “Statement” dated 23 June 2022, the Applicant contended or stated, inter alia, that:

(1)  It was unsatisfactory that the Court of First Instance ruled that he had no chance of success in reviewing the Board’s Decision.

(2)  The Director’s suggestion that he could change to live in another location in Vietnam was completely unfeasible for a number of reasons.

(3)  If he returned to Vietnam, his life would be seriously threatened and he might even be killed. Most of the creditors and gangsters in Vietnam were cruel and violent. They disregarded the law and were willing to kill people to satisfy their anger and ferocity.

(4)  The Immigration Department failed to consider his human rights under various instruments, including the Basic Law and the ICCPR.

DISCUSSION

13.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.

14.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.

15.The Applicant’s delay of over one year is very substantial and serious. His explanation for the delay, namely, that he could not understand English and was detained in a detention centre, is not a valid excuse for the delay.

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

17.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. In particular, 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. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

18.Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.The matters raised in the Applicant’s Affirmation and Statement are essentially repetitions of the basis of his non-refoulement claim. The suggestion that he was not given an opportunity to clarify his case and situation in his home country is without substance. He raised no ground, or substantial ground, of judicial review in the Form 86 or in his affirmation in support of the leave application, and did not request for an oral hearing of the leave application. The Judge was entitled to deal with the application on paper. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 4 March 2021, and has failed to raise any viable ground of appeal against the Order.

20.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

21.The application for extension of time to appeal is refused, and the Applicant’s summons of 23 June 2022 is dismissed.

The Applicant, acting in person