Re Le Xuan Truong

CAMP 252/2023, [2024] HKCA 261

On Appeal From [2023] HKCFI 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1263 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.On 13 July 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 May 2023 ([2023] HKCFI 1402) (“the Leave Decision”) refusing leave to apply for judicial review.  On 13 July 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1760) (“the EOT Decision”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 May 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 June 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 pursuant to 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 entered Hong Kong illegally on 2 April 2015 and surrendered to the Immigration Department on 8 April 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim have been summarised by the Judge at [1] ‑ [4] of the Leave Decision.

5.By a Notice of Decision dated 5 June 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.The applicant appealed the Director’s Decision to the Board.  On 3 May 2019, 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 [8] of the Leave Decision:

“8. In its decision the Board found some inconsistencies and discrepancies in the Applicant’s evidence that it had some concerns over the credibility of his claim of fear of harm from his creditor to cause him to leave his country for Hong Kong, but nevertheless accepted his claim of loan dispute with his creditor but found in the absence of any state or official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country 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 10 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review of the Board’s Decision was given in the Form 86.  In his supporting affirmation, he alleged that if refouled his life would still be in danger as he could not repay his debt.

THE JUDGE’S DECISION

8.On 24 May 2023, as the applicant did not request an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [10] ‑ [13] of the Leave Decision:

“10. 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.

11. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions 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 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.

12. 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.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

9.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.

10.On 8 June 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was one day late with his intended appeal.

11.On 13 July 2023, the Judge refused the applicant’s application, holding that although the delay of one day was not significant, in the absence of any error in the decision being clearly and properly identified by the applicant, there is no prospect of success in his intended appeal.

THIS APPLICATION

12.By a summons, a supporting affirmation and a written statement taken out on 13 July 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant did not give any reason for his delay.  In his supporting affirmation, the applicant alleged that the Leave Decision had been reached unfairly without an opportunity for him to clarify his case and situation in his home country.

13.In his written statement, the applicant repeated the factual basis and procedural history of his non-refoulement claim.  He alleged that his problems in his home country still persisted and that it was unfeasible for him to relocate internally in Vietnam.  He also alleged that the situation of corruption between gangsters and the police in Vietnam made it very dangerous for him to escape to another place in Vietnam.  He further stated that the Immigration Department failed to consider various legal provisions but did not elaborate or point to any specific particulars.

DISCUSSION

14.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.

15.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].

16.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)]).

17.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.

18.Although the applicant’s delay of one day is not substantial, in our view, there is plainly no merit in the applicant’s intended appeal.  His complaints are general allegations without particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As the applicant did not request an oral hearing, it is open for the Judge to consider his application on paper after considering the materials advanced by him.  In any event, the applicant already had ample opportunities to present his case and situation before the Judge.  There is plainly no substance in his complaints.

19.Further, the applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

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 Leave Decision.

DISPOSITION

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

The applicant acting in person