Vu Truong Son v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 59 /2024, [2024] HKCA 1077

On appeal from [2023] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1006 OF 2021)

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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 12 December 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 3 January 2024, 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 20 March 2024[2].

3.On 28 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 25 December 2019.  On 25 August 2020, he surrendered to the Immigration Department and lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and the creditor’s husband.

The decisions of the Director and the Board

5.By a Notice of Decision dated 25 January 2021, 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 11 May 2021.  The Board was not convinced that the applicant came to Hong Kong because of the alleged threat from the creditor or that he had suffered any physical or mental pain and suffering as alleged, in view of serious inconsistencies and implausibility in his evidence, as well as the lack of supporting evidence.  The Board also found the applicant has never suffered injury that has reached the requisite minimum level of severity.  The Board further held there is no evidence to show any harm or threat of harm instigated by state agent.  In addition, the Board held that state protection and internal relocation options are 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 3 June 2021.

The intended judicial review

7.On 16 July 2021, the applicant filed a Form 86 and an affirmation in HCAL 1006/2021 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 that the applicant does not have any valid ground to challenge the Board’s decision.  Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 12 December 2023.

Grounds of intended appeal

9.The applicant stated in his supporting affirmation that he is unrepresented and did not have access to any legal advice, but did not put forward specific grounds of appeal in the present application.

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 12 December 2023 and the applicant was late by about one week when he took out the summons at the court below on 3 January 2024.  The applicant did not provide any explanation for the delay.

12.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.

13.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.

14.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.

15.In the present application, the applicant 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.

16.For the above reasons, there is no prospect of success in the intended appeal.  We refuse to allow the applicant to appeal against the decision of 12 December 2023 out of time and dismiss the summons filed on 28 March 2024.

The Applicant, acting in person