Vu Van Dung v. Torture Claims Appeal Board

CAMP 178/2022, [2023] HKCA 1093

On Appeal From [2021] HKCFI 984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 178 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 425 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 14 April 2021 refusing to extend time for the applicant to apply for leave for judicial review and dismissing the application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 14 July 2017. In that decision, the Board dismissed, inter alia, the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 25 July 2016 and 19 June 2017 respectively rejecting his non-refoulement claim.

Background

2.The applicant is a national of the Vietnam born in 1987. He came to Hong Kong illegally with his wife and daughter in October 2015 and together they surrendered to the Immigration Department and jointly raised a non-refoulement claim on 3 November 2015, on the basis that if they returned to Vietnam they would be killed by a creditor, Khanh, because the applicant was unable to repay the loan owed to him. The details of the claim are set out at [22] of the Board’s decision.

3.The applicant’s claim was assessed jointly with his wife’s and daughter’s claims by the Director, initially with reference to three relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] and subsequently with reference to BOR 2 risk.[4] By two notices of decision dated 25 July 2016 and 19 June 2017 respectively, the Director rejected the claim. The first decision covered the first three risks, whereas the second decision covered BOR 2 risk.

4.The applicant together with his wife and daughter appealed to the Board against the Director’s decisions. The Board did not consider it necessary to hold an oral hearing and determined the appeals by way of review on the documents. The Board did not accept the applicant’s alleged fear that he and his family would be killed by Khanh because in the incident involving violence in probably early 2015 that he referred to, the creditor only punched the applicant’s face and kicked him causing his nose to bleed. All the other threats from Khanh were made verbally or by SMS messages, and after that incident they had never been attacked by Khanh up to the time they left Vietnam in October 2015. The Board did not accept that the applicant suffered serious harm in that incident. The Board considered that state protection would be available under the laws of Vietnam and that the applicant and his family could relocate within Vietnam to places such as Hanoi and Ho Chi Minh City and thereby avoid Khanh and his men. The Board concluded that the alleged risks of harm were not established. Accordingly, in its decision dated 14 July 2017, the Board dismissed the appeals and affirmed the decisions of the Director.

The Judge’s decisions in the court below

5.On 24 March 2021, almost three and a half years after the time limit of three months laid down in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) for judicial review had expired, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, naming himself only as the applicant, without specifying any grounds in that form. In the accompanying affirmation, he merely said he did not agree with the decisions of the Board and the Director because they were grossly unfair and unjust, and therefore sought judicial review.

6.The Judge, having considered the application on the basis of the documents alone as there was no request for an oral hearing, issued his decision on 14 April 2021, refusing to extend time for an application for leave to apply for judicial review and dismissed the application for leave for judicial review. The reasons were set out at [12] – [16] of the Form CALL‑1 as follows:

“ 12. In the Applicant’s case, a delay of almost 3 ½ years must be considered as extremely substantial and excessive, for which he did not provide any explanation in his summons or affirmation, and as such I do not find any good or valid reason for his such serious breach of the rule.

13. As for the merits, if any, of his intended application, as noted above he has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. 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 his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

16. 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.”

7.The applicant did not appeal within the period of 14 days after the Judge’s decision, as prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead, he filed a summons in the Court of First Instance on 12 August 2021 seeking an extension of time to appeal. In the supporting affirmation he repeated in summary the factual allegations that formed the basis of his non-refoulement claim.

8.The Judge held a hearing on 2 March 2022, but the applicant did not attend. On 16 March 2022, the Judge issued his decision in writing, refusing to extend time on the ground that there was no prospect of success in the intended appeal.

The renewed application before this Court

9.By summons filed in this court on 31 May 2022, the applicant applied for extension of time to appeal against the decision of the Judge dated 16 March 2022, but as explained in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, it should be treated as an application for extension of time to appeal against the Judge’s substantive decision dated 14 April 2021 refusing to extend time for judicial review and dismissing the application for leave for judicial review.

10.In the supporting affirmation, the applicant stated that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country and that the merits of this ground constituted sufficient reason for allowing him to appeal out of time. In a “Statement” filed on the same date, the applicant stated that he was late because, as he did not understand English, he did not know there was a deadline for filing an appeal and had to ask his friends. He said that contrary to the Director’s suggestion, it was not feasible for him to live in another location in Vietnam because his health was not good, he was not an active person, and there was no guarantee he would be able to adapt to the new place and find a job. He stated that his life would be seriously threatened if he returned to Vietnam, because the creditors and gangsters there were cruel and violent and would disregard the law and be willing to kill people out of anger and ferocity. It would also be quite possible for the creditor and gangsters, with their nationwide network and corrupt connections, to find out the applicant’s new residence. He complained in addition that the Immigration Department did not consider his human rights.

11.The applicant did not lodge any further written submissions as directed by the Registrar of Civil Appeals.

12.Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.In respect of the delay in appealing between April and August 2021, we note that the court’s letter enclosing the CALL-1 form dated 14 April 2021 sent by post to the applicant at Castle Peak Bay Immigration Centre was returned undelivered, and that it was sent to him again by post on 26 April 2021 at an address provided by the applicant to the Immigration Department, without being returned undelivered. There was no valid excuse at any rate for the substantial delay thereafter on the part of the applicant.

14.In any event, having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. In the present case, the Board rejected the applicant’s non-refoulement claim because it considered that the past incidents did not reach the requisite level of harm and that there was no real risk of serious harm upon refoulement, that reasonable state protection was available and that internal relocation to the major cities would be a viable option. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

16.The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time for applying for leave for judicial review and in dismissing his application for leave to apply for judicial review. Given the delay of three and a half years in filing the Form 86 and having regard to all the circumstances, we share the Judge’s view that there is no merit in the very late application for leave to apply for judicial review.

17.We do not see any prospect of success in the intended appeal. The applicant’s summons is accordingly dismissed.

The Applicant, unrepresented, acting in person