Vu Van Tuan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 47 /2024, [2024] HKCA 1078

On appeal from [2023] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 970 OF 2019)

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BETWEEN

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J U D G M E N T

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

1.On 20 July 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1].

2.On 22 December 2023, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 5 March 2024[2].

3.On 15 March 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 12 October 2014.  He surrendered to the Immigration Department and lodged a non-refoulement claim the next day.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

The decisions of the Director and the Board

5.By a Notice of Decision dated 26 May 2017, the Director of Immigration (“the Director”)  rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

6.The applicant appealed against the Director’s decision to the Board.  The appeal was heard before the Board on 22 March 2019.  The Board found that the alleged ill-treatment has not attained the requisite minimum level of severity.  The Board noted that the applicant’s problem was related to private matters concerning the repayment of outstanding loans.  The Board considered that avoidance of loan repayment is not one of the Convention reasons and there is no evidence to show that the applicant was targeted by the Vietnamese government.  In addition, the Board held that reasonable state protection is available to the applicant in Vietnam.  The Board concluded that the applicant’s application for non-refoulement protection fails on all applicable grounds and dismissed the appeal on 4 April 2019.

The intended judicial review

7.On 10 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 970/2019 to seek leave to bring judicial review against the Board’s decision.  In his supporting affirmation, he reiterated the problems he faced in Vietnam without putting forward specific grounds against the Board’s decision. 

The judge’s decision

8.DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing.  The judge held there is no error of law or procedural unfairness in the Board’s decision and the findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.  Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 20 July 2023.

Grounds of intended appeal

9.The applicant stated his grounds of appeal in his supporting affirmation and written statement which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;

(2)  It was unsatisfactory for the court to rule that the applicant has no chance of success in reviewing the decisions of the Director and the Board;

(3)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill;

(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(5)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(6)  The applicant was also wanted by the Vietnamese police for disturbing public order.  He is worried that he would be brutally tortured by the Vietnamese police if caught;

(7)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

Analysis and disposition

10.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the 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.

11.Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 20 July 2023 and the applicant was late by about three and a half months when he took out the summons at the court below on 22 December 2023, exclusive of the court’s summer vacation in August.  In the supporting affirmation, the applicant asserted that the merits of his grounds of appeal constitute sufficient justification for the court to allow him to appeal out of time.  However, he did not provide any explanation for the delay.  As the applicant does not have any excusable explanation for the delay, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

12.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.

14.The judge was entitled to consider the applicant’s leave application on paper without a hearing pursuant to Order 53 Rule 3(3)  of the Rules of the High Court, as the applicant did not request for an oral hearing in his Form 86.  The applicant had the opportunity to make any clarification through his affirmation in support.  There is no basis to complain that he has not been given the opportunity to clarify his case and there is nothing to show that the judge’s decision was made unfairly.

15.The rest of his grounds are also not viable. The applicant did not raise these grounds in his previous applications at the court below.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[7].  

16.In any event, these grounds are just groundless assertions.  The applicant failed to provide sufficient particulars, elaboration or evidence in support.  In particular, he failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.For the above reasons, there is no prospect of success in the intended appeal.  We decline to exercise our discretion to extend time to appeal and dismiss the summons filed on 15 March 2024.

The Applicant, acting in person