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

CAMP 36/2025, [2025] HKCA 479

On Appeal From [2024] HKCFI 3522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 36 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2078 OF 2019)

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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 Reuden Lai (“Judge”) dated 6 December 2024[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 June 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 6 November 2017 rejecting his non-refoulement claim.

2.On 7 February 2025, the Judge refused to extend time for the applicant to appeal against his decision of 6 December 2024.

Background

3.The applicant is a national of Vietnam born in 1962.  He claimed to have travelled illegally from Vietnam to Mainland China on 30 April 2016 and then entered Hong Kong illegally on 2 May 2016.  The applicant surrendered to the Immigration Department on 4 May 2016.  He lodged a claim for non-refoulement protection and submitted his non-refoulement claim form dated 14 September 2017 on the basis that he would be harmed or killed by his creditor (Nguyen Van Rue) as a result of his inability to repay a loan, if he was refouled to Vietnam.

4.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 6 November 2017, the Director rejected the claim.

5.The applicant appealed to the Board against the Director’s decision.  The Board determined the applicant’s appeal without an oral hearing.  In its decision dated 20 June 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board found that the applicant’s past harm did not reach the requisite level, that it was a purely personal dispute between the applicant and his creditor, that there was no state involvement, that reasonable state protection would be available to the applicant, that his problem was localized, and that internal relocation to other cities in Vietnam would be a viable option for the applicant.

The Judge’s decisions in the court below

6.On 22 July 2019, 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, without specifying any grounds in that form.  In the supporting affirmation, the applicant repeated his claim for non-refoulement protection and annexed a copy of the Board’s decision.

7.The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing on 30 October 2024.  On 6 December 2024, the Judge issued his decision to refuse to grant leave to apply for judicial review.  In the Form CALL-1, the Judge observed that the applicant did not specify what errors the Board had made and that the applicant was in reality using the judicial review process in order to challenge the factual findings of the Board.  After considering the available documents and the applicant’s oral submissions, the Judge found that there were no errors in the Board’s decision that amounted to procedural unfairness or Wednesbury unreasonableness, and that the applicant had no reasonable prospects of success in the judicial review.

8.A few days after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 23 December 2024 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In his affirmation, the applicant stated that he did not receive the Form CALL-1 by post, that his friends saw an update of new judgments that included his name, and that he had to wait for his friends to assist him to try to file an appeal, which resulted in expiry of the time limit.   On 7 February 2025, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

9.By summons filed on 24 February 2025, the applicant made an application for leave to appeal out of time against the order of the Judge dated 7 February 2025.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 6 December 2024 refusing leave for judicial review. 

10.In the applicant’s supporting affirmation, he stated that the decision was unfair because the Judge did not give him an opportunity to clarify his case and situation in his country.  He further attached a statement in which he stated that he found the Judge’s decision to be unsatisfactory, that creditors and gangsters in Vietnam are cruel and violent, that internal relocation is not feasible, that the network of creditors and gangsters can locate him anywhere in Vietnam, and that the Director did not consider his human rights.

11.The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 24 February 2025, aside from the statement attached to his affirmation. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.The applicant was late for 3 days when he filed his initial summons on 23 December 2024.  In his supporting affirmation, the applicant stated that he did not receive the Form CALL-1 by post and only found out when his friends saw his name on an update of new judgments.  As this is not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

13.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had assessed the applicant’s evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it considered that the applicant’s past harm did not reach the requisite level, that it was a purely personal and localized dispute between the applicant and his creditor, that there was no state involvement, that reasonable state protection would be available to the applicant, and that internal relocation to other cities in Vietnam 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 dismissing his application for leave to apply for judicial review.

17.In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 24 February 2025 is accordingly dismissed.