Re Bui Duc Toan

CAMP 164/2022

[2022] HKCA 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 164 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 357 OF 2021)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.By a summons filed on 25 May 2022[1], the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 5 August 2021 refusing to extend time and dismissing his application for leave to apply for judicial review ([2021] HKCFI 2196) (“the Leave Decision”). By an earlier judgment dated 7 December 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3526) (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 27 March 2020 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 14 August 2019 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.The applicant is a national of Vietnam.  He surrendered to the Immigration Department on 12 January 2015 and claimed that he entered Hong Kong illegally on 30 December 2014.  He raised a non‑refoulement claim on 12 January 2015 which was dismissed by the Director on 24 February 2017 and his appeal was dismissed by the Board on 29 June 2017.  He was then refouled to Vietnam on 20 March 2018.

5.Subsequently, he was again arrested in Hong Kong by the police on 14 February 2019.  By the written representations dated 6 April 2019 and 12 May 2019, he raised a subsequent non-refoulement claim on the basis that he was in fear of being harmed or killed by his creditor upon return to Vietnam owing to his failure to repay his debt.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

6.By a Notice of Decision dated 14 August 2019, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR2 risk[3], BOR3 risk^[4] and persecution risk^[5].

7.On 23 August 2019, the applicant appealed against the Director’s Decision to the Board.  On 2 January 2020, he attended an oral hearing before the Board.  On 27 March 2020, the Board dismissed his appeal.  The Board considered that the alleged dispute between the applicant and his creditor was private in nature and that the risk that he would be subjected to harm or torture was be low and remote.  The Board also considered that there will be internal relocation alternatives available to the applicant.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

8.On 16 March 2021, the applicant filed a Form 86 with a supporting affirmation[6] applying for leave to apply for judicial review against the Board’s Decision.  However, he did not raise any ground of review and only claimed that he could not return to Vietnam because his life would be in danger.  As he did not request for an oral hearing, the Deputy Judge considered and dealt with his application on paper.

9.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] ‑ [18] of the Leave Decision:

“12. 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. I shall first consider the merits of the applicant’s case.

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. His ground in support of this application does not assist his application.

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 reasonable prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

10.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

11.On 12 November 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.[7]  By then, he was almost two months late with his intended appeal.[8]  In his supporting affirmation, he complained that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country and that there was a lack of legal assistance.

12.By the EOT Decision, the Deputy Judge noted that the applicant did not request for an oral hearing for his application for leave to apply for judicial review, and accordingly, his application was dealt with on paper.  In any event, he failed to set out what he intended to clarify if there had been an oral hearing before the Court.  The Deputy Judge also noted that the applicant did not have any realistic prospect of success in his intended appeal and refused to extend time for his intended appeal.

The Present Application

13.By a summons and supporting affirmation both filed on 25 May 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.[9]  Again, he complained that the Leave Decision was reached unfairly without providing him a chance to clarify his case and that being legally unrepresented, he was unaware of the rules regarding time limit and had no knowledge how to appeal.

14.Contrary to the directions made by the Registrar of Civil Appeals on 25 May 2022, the applicant did not file any written submissions in support of his present reapplication.

Discussion

15.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.We consider that the applicant’s delay of almost two months as substantial and ignorance of the time limit is not a good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.The 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 assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.The applicant’s appeal is clearly without merit.  As rightly noted by the Deputy Judge in the EOT Decision, the applicant did not request for an oral hearing and accordingly, his application for leave to apply for judicial review was rightly dealt with on paper by the Deputy Judge.  The applicant also did not point out what clarification he intended to make if there had been an oral hearing.  His complaint plainly has no substance.

19.Further, it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  Accordingly, there is also no merit in his allegation.

20.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 25 May 2022 dismissed.