Re To Quang Tam

CACV 150 /2024, [2025] HKCA 132

On appeal from [2024] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 150 OF 2024

(ON APPEAL FROM HCAL NO. 1279 OF 2019)

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JUDGMENT

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

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 12 April 2024^[1] refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review.  The intended judicial review was in respect of the decision the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting his non‑refoulement protection claim.

2.Despite directions given by the Court, the applicant did not lodge any written submission to support his appeal.  He had consented to the Court of Appeal disposing of his appeal on the papers without an oral hearing.      

The applicant’s claim

3.The applicant is a Vietnamese national aged 44.  He entered Hong Kong illegally and was arrested by the immigration officers on 17 August 2015.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by a loan shark due to his inability to repay his debt to him.  His claim was set out in details in [7] of the Director’s decision. 

4.In gist, the applicant claimed that he and his cousin obtained a loan from the loan shark to start a fish breeding business.  The business suffered a loss as a result of a storm in 2013.  When the applicant could not keep up with the interest payment, the loan shark demanded full repayment, and threatened to seize his home and harm his wife and kill him.  In early 2015, his people assaulted the applicant and wounded him with a knife, causing him to be hospitalized for a month.  Fearing for his personal safety, the applicant fled to mainland China from where he sneaked into Hong Kong.           

The Director’s and the Board’s decisions

5.By a Notice of Decision dated 11 January 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.The applicant’s appeal against the Director’s decision was heard before the Board on 20 September 2018, during which the applicant was represented by a lawyer assigned by the Duty Lawyer Scheme.  He gave evidence and answered questions from the government counsel appearing for the Director and also questions from the Board.  By a decision given on 15 November 2018, the Board dismissed the appeal.      

7.In gist, for the reasons given in [71] to [82] of its decision, the Board found the applicant’s evidence vague, unpersuasive and inconsistent in significant aspects, and the applicant was deliberately evasive and untruthful in some aspects of his evidence.  The Board did not accept he had borrowed money from a loan shark, or he had defaulted in repayment, or he was threatened, attacked or harmed which caused him to leave Vietnam.  The Board found he failed to establish the factual basis of his claim.  The Board further considered that the applicant’s claim in any event did not come within the ambit of the applicable grounds.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.The applicant filed a Form 86 and an affirmation on 14 May 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than outlining the factual basis of his claim in the supporting affirmation, the applicant did not provide any grounds for seeking relief. 

9.The applicant’s application was made out of time.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was almost three months late.  He did not provide any explanation for the delay.

10.The applicant did not request for an oral hearing.  The Judge dealt with his leave application on paper.  By a Form CALL-1 dated 12 April 2024, he refused to extend the time and dismissed the application.  The Judge held that the applicant had given no valid ground to challenge the Board’s decision and his intended judicial review had no realistic prospect of success.

The appeal

11.By a notice of appeal dated 17 April 2024, the applicant appealed the Judge’s decision to this court. 

12.The grounds of appeal in the notice of appeal stated that: (1) the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by his creditor if he returns to Vietnam; (2) internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market and he may not be able to adapt and make a living; (3) the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4) the Director has disregarded the applicant’s human right. 

13.The applicant also filed an affirmation which stated that there was a good ground of appeal that was not being considered at the leave application stage.  We will not consider this affirmation as the applicant does not apply for, and has not been given, leave to file new evidence in this appeal.  In any event, the affirmation only makes a vague assertion without elaborating on what is the ground of appeal referred to.

Our reasons for decision

14.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.  In sum, 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 scrutinizing 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.We are of the view that the grounds of appeal in the notice of appeal are unarguable.  Importantly, the applicant has not identified any error in the Judge’s decision.  Secondly, the Board had found the applicant’s evidence incredible and rejected it in its entirety.  The applicant has not provided any valid basis for challenging the Board’s findings.  In the circumstances, his assertion that he will be harmed by his creditor and his associates has no factual foundation and cannot stand. Likewise, his assertion that his human right has not been considered must also fail.  Given that his intended judicial review is bound to fail, the Judge was correct not to extend the time and dismiss his application for leave to apply for judicial review.

16.For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person