Nguyen Van Son v. Torture Claims Appeal Board

CAMP 383/2022

[2023] HKCA 315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 383 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1342 OF 2021)

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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 27 September 2022, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 2 August 2022 refusing to grant an extension of time to the Applicant to appeal against the Judge’s earlier order dated 2 December 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 2 September 2021, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 June 2021 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a 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 on 22 January 2016. On 27 January 2016, he surrendered himself to the Immigration Department, and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by a local loan shark over his family’s outstanding debts. Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form ([2021] HKCFI 3633).

5.By a Notice of Decision dated 23 June 2021, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 2 September 2021, 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:

“In its decision the Board accepted the Applicant’s claim of fear of harm from the loan shark over his family’s outstanding loan but found that it was a private monetary dispute without any official involvement that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

7.On 27 September 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not give any grounds for judicial review in the Form 86. In his supporting affirmation, he said that he did not agree with the decisions of the Director and the Board, and he could not go back to his home country because his life would be in danger there.

THE JUDGE’S DECISION

8.On 2 December 2021, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[8] On 24 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision in rejecting his claim as he cannot return to his home country where his life would still be in danger but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

…

[10] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one without any official involvement and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[11] In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.On 2 August 2022, the Judge refused the Applicant’s application by summons dated 21 April 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2276).

THIS APPLICATION

10.By a summons taken out on 27 September 2022, the Applicant applied to the Court of Appeal for leave to appeal against the Judge’s order of 2 August 2022. In the summons, the Applicant asked for leave to, inter alia, “advance a new sole ground of appeal”, without identifying what such ground might be.

11.In his affirmation of the same date, the Applicant alleged that the decision made by the High Court had been reached unfairly without allowing him an opportunity to clarify his case or the situation in his home country, and said that he believed the merits of this ground of appeal constituted sufficient reason or justification for the court to exercise its discretion to allow his appeal out of time.

12.In his written “statement” dated 27 September 2022, the Applicant said that it was unsatisfactory that the Court of First Instance ruled that he had no chance of success in reviewing the Board’s decision, and repeated that he would be tortured, beaten, or even killed by his creditor if he were to return to Vietnam. He explained that he could not relocate to live in another place in Vietnam. He said that the Board did not accept his oral evidence but failed to investigate or take any measures to prove that his evidence was not true, and that it was impossible to gather evidence to prove his case because it was against “the whole regime of the Vietnamese state”. He also alleged that the Immigration Department did not consider his human rights.

13.The Applicant has not lodged written submissions in accordance with the directions given by the Registrar of Civil Appeals on 27 September 2022.

DISCUSSION

14.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.

15.In deciding whether to extend time to appeal, the 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.

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 of Appeal’s general approach in dealing with appeals in non-refoulement cases 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 is an 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 Applicant’s complaint that the Judge made his decision to refuse leave to apply for judicial review without allowing him an opportunity to clarify his case or the situation in his home country has no merit. He did not request for an oral hearing in the Form 86. In view of the fact that no proper ground of judicial review was advanced in either the Form 86 or his supporting affirmation, the Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, r 3(3) of the Rules of the High Court.

20.The Applicant has failed to point to or show any error in the Judge’s decision of 2 December 2021, and has failed to raise any viable ground of appeal against the Order.

21.There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

22.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 27 September 2022 is dismissed.

The Applicant, acting in person