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

CAMP 22/2025, [2025] HKCA 629

On An Intended Appeal From [2024] HKCFI 1989 &

[2024] HKCFI 3280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 22 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1647 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.On 6 February 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 19 December 2024 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 30 July 2024 (“the Order”) refusing to grant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 February 2017 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents filed herein, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Vietnam.  He claimed that he sneaked into Hong Kong illegally on 7 October 2014.  On 8 October 2014, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor (Vu Thi Tu), who had triad connections, because he was unable to repay a loan.  Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of the CALL-1 Form ([2024] HKCFI 1989).

5.By a Notice of Decision dated 23 February 2017 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

6.The Applicant appealed the Director’s Decision to the Board.  On 18 April 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 have been summarised by the Judge at §§13 and 14 of the CALL-1 Form, as follows:

“[13] The Board found the [Applicant’s] story adequately consistent as to the money lending and the loan collection incidents after the loan was overdue to the creditor [42]. However, the adjudicator was of the view that the previous actions taken by the creditor were merely intended to pressurise the [Applicant] to repay the loan, rather than to really cause harm on him [45]. In any event, as the [Applicant] admitted during the hearing that his mother had already helped him clear off the debt in March 2019, the creditor should no longer be a threat to him or his family [39], [74].

[14]  Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Persecution risk [3]-[8], [43]-[59], BOR 2 and BOR 3 risk [9]-[17], [61]-[68] or Torture risk [18]-[22], [69]-[78].  In any event, state protection was also available to the [Applicant] according to the country of origin information [46]-[57].”

7.On 17 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he merely stated that he did not agree with the Board’s Decision.

THE JUDGE’S DECISION

8.On 30 July 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[19] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[21] As the [Applicant’s] mother had settled his debt, the [Applicant] has no ground to support his application because he will not be subjected to any of the applicable risks if he returns to his country.

[22] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

9.On 5 November 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, he was around two and a half months late to lodge his appeal.  On 19 December 2024, the Judge dismissed the application, holding that the Applicant had failed to give any valid reason to challenge the Board’s Decision ([2024] HKCFI 3280). 

THIS APPLICATION

10.By a summons taken out on 6 February 2025, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Judge’s order of 19 December 2024.

11.In his affirmation of the same date, the Applicant stated that the decision made by the High Court was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.  He also asserted that the merits of this ground of appeal constituted sufficient reason or justification for the court to exercise its discretion to allow his appeal out of time.

12.In a statement dated 6 February 2025 lodged with the summons, the Applicant repeated his claim of threats from his creditor in Vietnam.  He also asserted that relocation is completely unfeasible for various reasons, and that the Immigration Department had failed to consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

13.The Applicant has failed to lodge written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals on 6 February 2025. 

DISCUSSION

14.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

15.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.

16.In the present case, the Applicant’s delay of around two and a half month is substantial, and he has given no good or valid explanation for his delay.

17.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.

18.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 a non-refoulement case, 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 was a fresh application for judicial review (see Nupur Mst,at §14(6)).

19.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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

20.The Applicant’s complaint that the decision of the Judge was reached unfairly without allowing him an opportunity to clarify his case or the situation in his country has no merits.  The Applicant did not request for an oral hearing in the Form 86.  In view of the apparent lack of merits of the application, the Judge was entitled, in the exercise of his discretion under Order 53, Rule 3(3) of the Rules of the High Court, to deal with the leave application on paper.  As for the allegations made in his statement dated 6 February 2025, they are all general assertions without particulars, and cannot constitute valid grounds of appeal.

21.The Applicant has failed to identify or show any error in the Judge’s decision of 30 July 2024, and has failed to raise any viable ground of appeal against the Order.

22.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 Order.

DISPOSITION

23.The Applicant’s summons taken out on 6 February 2025 is dismissed.