Nguyen Duc Trong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 67/2023, [2023] HKCA 722

On An Intended Appeal From [2021] HKCFI 1433 &

[2023] HKCFI 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2702 OF 2018)

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JUDGMENT

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

1.On 13 February 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 3 February 2023 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 26 May 2021 (“the Order”) refusing to grant him leave 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 30 August 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 15 August 2016 and 3 March 2017 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 lodged his non-refoulement claim with the Immigration Department on 18 August 2014 on the basis that if refouled, he would be harmed or killed by his creditor and/or the subordinates of his creditor because he was unable to pay off his debt owed to the creditor.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2021] HKCFI 1433).

5.By a Notice of Decision dated 15 August 2016 and a Notice of Further Decision dated 3 March 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

6.The Applicant appealed the Director’s Decisions to the Board.  On 30 August 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons set out below.

(1) The Board did not have serious doubt in his story.

(2) The Board found that the Vietnamese government had tried their best to combat corruption and illegal lending. [67] The applicant failed to establish that he would be subjected to persecution within the context of the Convention if he returned to Vietnam. [68]

(3) The applicant failed to establish that he would be subjected to BOR 2 risk. [70]

(4) The Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled to Vietnam. [76]

(5) The Board found that there was no state acquiescence, active or passive, in the applicant’s case. [83-85]

(6) The Board found that there was no foreseeable, real, personal and present risk of torture to the applicant if he returned to Vietnam. [86]”

7.On 28 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In his affirmation of the same date, he complained that the Board failed to consider his evidence objectively, selectively and unfairly accepted some evidence which supported the Board’s Decision, and failed to understand the actual situation in Vietnam.

THE JUDGE’S DECISION

8.On 26 May 2021, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[15] I have considered his grounds in support of his application. I reject his grounds for the reasons as follows:

(1) the Board had considered the Director’s Decisions and affirmed it, therefore those reasons as stated in the Director’s Decisions should be taken into consideration as well;

(2) in the Director’s Decisions, the Director found that internal relocation is an option open to him, which he has not raised objection;

(3) the allegation that the Board selectively chose the evidence against him is only his opinion, which is not supported by evidence as shown in the Board’s Decision;

(4) objective evidence shows that corruption is a criminal offence in Vietnam and officers who have committed the offence are subject to the sanction of the law, the news report is the evidence to show that even the Prime Minister is not above the law;

(5) the evidence shows that it is a personal debt without any state involvement throughout the incidents.

[16] Although I notice that the Board had not taken into consideration the issue of internal relocation in its Decision, a factor that is usually considered by the Director and the Board where the applicant’s evidence on the facts of his case is accepted, this issue has been taken on board by the Director’s Decision, which the Board adopted. The Court of Appeal held in TK v Michael Jenkins Esq and Director of Immigration [2013] HKC, 526, CA, that if internal relocation is available to the applicant and it is not unduly harsh for him to relocate, there is no justification for affording international protection under either the Refugees Convention 1951 or the Torture Claims [32 & 33].

[17] There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

9.On 4 January 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 3 February 2023, the Judge refused the application, holding that there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

10.By a summons taken out on 13 February 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 3 February 2023. In his affirmation filed on the same date, the Applicant said that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, but failed to identify what such ground might be.

11.The Applicant has failed to lodge written submissions in support of his application in accordance with the directions of the Registrar of Civil Appeals dated 13 February 2023.  In his letter to the High Court dated 21 February 2023, the Applicant states that his problem in Vietnam has not yet been solved, and he cannot go back to his home country.  He says that he has no legal representative, and requests the Court to give him time until his girl-friend could arrange a legal representative for him.  He also says that he does not know English (notwithstanding the fact that his summons and affirmation of 13 February 2023 and his letter to the High Court dated 21 February 2023 are all written in English).

DISCUSSION

12.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.

13.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.

14.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.

15.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)).

16.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.

17.There has been very substantial delay on the part of the Applicant to pursue his intended appeal against the Order.  The Applicant has given no good or valid explanation for the delay.

18.The fact that the Applicant has no legal representation is not a valid ground of appeal, or a good reason for the Court to postpone consideration of his application.

19.The Applicant has failed to identify or show any error in the Judge’s decision of 26 May 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.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

21.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 13 February 2023 is dismissed.

22.This judgment is written in English because the judgments below, the Applicant’s summons and affirmation of 13 February 2023, and his letter to the High Court dated 21 February 2023 are all written in English.  If required, the Applicant may arrange with the clerk to this Court for an oral interpretation of this judgment in the Court’s premises.

The Applicant, acting in person;

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.