Re Pham Van Quang

CAMP 492/2022, [2023] HKCA 671

On appeal from [2021] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 492 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2336 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”)  dated 2 March 2021[1] refusing to extend time for applying for judicial review and dismissing the application for leave to apply for judicial review.

2.The applicant has filed a supporting affirmation together with a written statement to support his application.   

3.Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decisions of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

5.The applicant is a national of Vietnam aged 62.  He arrived in Hong Kong on 26 March 2003 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested on 18 March 2006.  On 11 April 2006, he was sentenced to 19 months’ imprisonment for various criminal.  He was repatriated to Vietnam on 26 April 2007.  He later entered Hong Kong illegally and was arrested by the police on 13 July 2010.  He was sentenced to 24 months’ imprisonment for offence that included breach of a deportation order.  On 21 March 2014, he lodged a non-refoulement claim based on fear of being harmed or even killed by (i)  his two creditors due to his outstanding debts, and (ii)  the Vietnamese government for damaging the national flag and placards of the Vietnamese Communist Party.  The details of the applicant’s claim were set out in the decision of the Board at [3] to [28].  We will not repeat them.   

6.By two decisions dated 18 July 2016 and 27 April 2017, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds while the further decision also takes into account the BOR 2 risk[5] ground.

7.The applicant appealed the Director’s decisions to the Board.  The Board held an oral hearing on 15 August 2017.  The applicant elected not to give evidence an adopted the documents that had been submitted as his evidence.  By its decision dated 26 March 2018, the Board dismissed the appeal.  The Board found, on the applicant’s case, that the creditor was concerned to obtain repayment of the loan rather than setting out to kill the applicant, he was also only attacked once and his injuries were not serious.  In any event, the Board found the dispute was private in nature and there was no evidence to suggest the involvement of the state.  The Board further found that state protection and internal relocation option were reasonably available, which would negate or reduce any harm that the applicant might face.  As for his fear of being persecuted by the Vietnamese government due to an isolated incident when he desecrated the national flag of Vietnam and some propaganda placards of the ruling party, the Board held that the fear was unsubstantiated having regard to the objective country of origin information (“COI”).  The Board thus concluded that the applicant’s claim failed on all applicable grounds.

8.On 24 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Order 53 rule 4 of the Rules of the High Court provides that application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  The applicant’s Form 86 is out of time by 4 months.  There was no explanation for the delay.  The applicant also did not put forward any specific ground for seeking relief, other than stating in his affirmation that he feared his creditor would harm him and that the Board’s decision was unfair.

9.The Judge considered the application on paper.  By a Form CALL-1 dated 2 March 2021, he refused to extend the time for applying for judicial review and dismissed the application for leave to apply for judicial review.  He gave his reasons at [18] to [24] as follows:

“18. In this case, even counting only from the 3-month time limit which expired on 26 June 2018 the application was late by almost 4 months. The delay was substantial and the applicant did not provide any explanation for the delay. I do not see any satisfactory or valid reason for the delay.”

“19. As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

20. In the present case, the Board did not take issue with the applicant’s claimed primary events about the attack by his creditors and the incidents in the police station. It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled. Further and in any event, the Board found that state protection is available and internal relocation is a viable and reasonable option for him.

21. As mentioned above assessment of evidence, risk of harm, availability of state protection and viability of internal relocation 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.

22. The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of his claimed fear of harm at the hands of his creditor and a bare assertion without evidence in support that the Board’s decision was unfair. There is no reasonably arguable basis to challenge the findings of the Board.

23. I also agree with the Board that there was no evidence to support the allegation that the Vietnamese government colluded with the applicant’s creditors or that the state acquiesced to the improper acts of his creditors. There was also no evidence to substantiate his claim that he would be tortured or even sentenced by death penalty for his acts in the local police station. An appropriate punishment for his criminal acts proved after due process of law does not amount to torture or CIDTP or persecution.

24.  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.”

10.Pursuant to Order 53 rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.By a summons filed on 5 August 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Lung dealt with the application on paper, and by his decision handed down on 6 October 2022[6] refused the application. 

12.Under Order 59 rule 14(3)  of the Rules of the High Court, the applicant may within seven days from Deputy High Court Judge Lung’s refusal make a renewed application to this Court for extension of time to appeal.  On 24 November 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.  The summons was late by six weeks.  The applicant has given no explanation for the delay.

13.As to the renewed application to extend time for appealing against the refusal of leave to apply for judicial review, this 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. 

14.The applicant was nearly 17 months late when he made the application for extension of time to the court below.  This is very serious delay.  In his affirmation filed in the court below, the applicant explained that he did not receive the documents from the Court and that he does not understand English or Chinese.  The Court record shows that the Form CALL-1 was posted to the address provided by the applicant and had not been returned by the Post Office.  The applicant had also not elaborated on how and when he came to have notice of the Judge’s decision.  While accepting the applicant may have difficulty understanding the two official languages, it would appear that he was able to obtain some assistance.  Having regard to the lengthy delay, we are not satisfied that the applicant has satisfactorily explained the delay.  In view of the undue and inordinate delay, the applicant must show that the intended appeal enjoys a real prospect of success.  

15.In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Relevantly, 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.  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.

16.In his supporting affirmation in support, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country.  He also asserted that the merits of this ground of appeal constitute sufficient reason for the court to exercise its discretion in allowing the appeal out of time. 

17.The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given that he does not enjoy good health and is not an active person.  It is said that he will be disadvantaged in the labour market and may not be able to find a job to support himself.  It also said that with their nationwide network and connections with the police and government officials, his enemy can find him no matter where he goes.  The applicant further complained that the Director ordered his deportation without regard to his human rights under the Basic Law and various international covenants.  Finally, it said that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, his life will be in danger.

18.For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation and written statement are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  The applicant has not identified any error in the Judge’s decision that warrants interference by this Court.

(2)  It is also the duty of the applicant to set out in the Form 86 his grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and his Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(3)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, rejected the applicant’s claim as being incredible.  However, it also went on to hold that, even accepting his case to be true, the risk of harm was very low and did not satisfy the requirements for granting non-refoulement protection.  Given that the applicant has not pointed to any error in the Board’s assessment, the assertion of fear of harm in the written statement has no proper factual foundation and cannot amount to arguable ground of appeal. 

(4)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.   

19.We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.   

20.As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 24 November 2022. 

The applicant, unrepresented, acted in person.