Case Detail

CACV 588/2020

[2021] HKCA 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 588 OF 2020

(ON APPEAL FROM HCAL NO 976 OF 2018)

________________________

BETWEEN
	Ta Quang Vinh	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Judgment: 27 September 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 10 May 2021 ([2021] HKCA 675). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge C P Pang dated 22 October 2020 ([2020] HKCFI 2589) refusing to grant extension of time to seek leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 1 June 2021 that the applicant should lodge written submissions in support of his notice of motion on or before 11 June 2021 and that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant has not lodged any written submission as directed. The time for compliance with the said directions has expired. Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. He entered Hong Kong illegally on 21 May 2014. He surrendered to the Immigration Department and raised a non‑refoulement claim on 26 May 2014. His claim was made on the basis that he will be harmed by his former employer if he returns to Vietnam as he failed to repay her financial loss which resulted from the destruction of her pawn shop by fire.

4. His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 26 May 2017. His appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 28 February 2018.

5. He filed a Form 86 on 30 May 2018 to seek leave to apply for judicial review against the decision of the Board. His application was made outside the three-month period stipulated under Order 53 rule 4 of the Rules of the High Court (Cap 4). DHCJ Pang refused to grant extension of time and dismissed the leave application on 22 October 2020.

6. On 3 November 2020, the applicant filed a notice of appeal against the judge’s decision. The appeal was dealt with by the Court of Appeal on paper without an oral hearing as the applicant consented to the disposal of his appeal on paper. The appeal was dismissed by the Court of Appeal on 10 May 2021. The applicant filed a Notice of Motion on 28 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7. The applicant stated the following grounds of appeal in the Notice of Motion:

(1) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director refusing his application for leave for judicial review and the appeal;
(2) The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

Analysis and disposition

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9. The applicant’s leave application concerns the Board’s decision rather than the Director’s decision. In any event, the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant: Re Moshsin Ali^{^[1]}. Therefore, the applicant’s grounds in relation to the judges’ failure to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director are wholly without merit.

10. Besides, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in dismissing his appeal.

11. He contended in his affirmation in support how the limitation statute is being used against litigants is a matter of public importance and the Court of Final Appeal should hear the matter. Although the leave application was filed outside the three-month period stipulated under the Rules of the High Court for applying for leave to bring judicial review, the judge accepted that the applicant’s delay was insignificant and hence focused on the merits of the intended application when considering the leave application. The Limitation Ordinance is not involved in the present proceedings and the judge’s refusal to grant leave has nothing to do with the limitation statute. The applicant’s contention on public importance is untenable. There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12. For all the above reasons, we refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 28 May 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2018] HKCA 549 at §45

CACV 588/2020

[2021] HKCA 675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 588 OF 2020

(ON APPEAL FROM HCAL NO 976 OF 2018)

________________________

BETWEEN
	Ta Quang Vinh	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Dates of Written Submission: 3 February 2021

Date of Judgment: 10 May 2021

________________________

J U D G M E N T

________________________

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

1. The applicant lodged a Notice of Appeal on 3 November 2020 against the decision of Deputy High Court Judge C P Pang dated 22 October 2020^{^[1]}. By that decision, the judge refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim and dismissed the leave application.

2. The applicant is a national of Vietnam. He is 27 years old. He entered Hong Kong illegally on 21 May 2014. He surrendered to the Immigration Department and lodged a non-refoulement claim on 26 May 2014. His claim was made on the basis that he would be harmed by his former employer if he returns to Vietnam as he failed to repay her financial loss which resulted from the destruction of her pawn shop by fire. Whilst under recognizance, the applicant was arrested by the police on 27 January 2015 for theft and was later sentenced to two months’ imprisonment.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 3 February 2021 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decisions

4. By a Notice of Decision dated 25 July 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk^{^[2]}, BOR 3 risk^{^[3]} and persecution risk^{^[4]}.

5. The Director considered that the applicant’s former employer does not have real intention to harm the applicant or his family at all as she had only made verbal threats but had not taken any adverse action against them. The Director further found that the applicant’s problem is a private and personal dispute with no involvement of the Vietnamese government or authorities. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

6. By a Notice of Further Decision dated 26 May 2017, the Director rejected the applicant’s claim on BOR 2 risk ^{^[5]} in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

The Board’s decision

7. The applicant’s appeal against the Director’s decisions was heard before the Board on 25 August 2017. The Board found there is no merit in the applicant’s claim as the applicant and his family members had never been inflicted with any injury and there was no evidence to show that his former employer had any intention to cause any harm to him. The Board also found that the former employer was not politically affiliated nor was she connected with triads and there was no evidence of police or government involvement. The Board further considered that state protection and internal relocation are reasonable and available to him upon his return to Vietnam. Thus, the Board rejected the appeal on 28 February 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 30 May 2018 to seek leave to apply for judicial review against the decision of the Board. His application was filed outside of the three-month requirement under the Rules of the High Court (Cap. 4A) Order 53, rule 4.

9. He has not set out any grounds for his intended challenge against the Board in the leave application but only reiterated the danger he may face when he returns to Vietnam in his supporting affirmation.

The judge’s decision

10. DHCJ Pang considered the leave application on the papers as the applicant did not request for an oral hearing. The judge considered the applicant failed to demonstrate that the Board was unfair or unreasonable in the public law sense and failed to show any reasonably arguable basis to challenge the findings of the Board. The judge considered both the decisions of the Director and the Board and found no error of law, irrational findings, or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness. The judge accepted that the delay of two days is insignificant but considered there is no good reason to grant extension of time as there is no realistic prospect of success in the applicant’s intended application. Therefore, the judge refused to grant extension of time and dismissed the leave application on 22 October 2020.

Grounds of appeal

11. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 3 November 2020:

(1) the gravity of his circumstances has not been weighed or realized by the putative respondents in considering his non-refoulement claim;
(2) he should be given an opportunity to plead his case properly.

12. His further submissions in writing may be summarized as follows:

(1) high standards of fairness are required in the determination of a torture claim;
(2) the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

Legal Principles

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. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

15. The applicant’s grounds are just bare assertions without particulars or evidence in support. The applicant contended that he should be given an opportunity to plead his case properly. He did not give any elaboration as to whether such complaint was made against the Board or the judge. In fact, the judge considered his leave application on the paper as the applicant did not request for an oral hearing and did not respond to the court’s letter inviting him to indicate whether he would like to have an oral hearing. He was given the opportunity to file submissions with the court but he did not do so. In his appeal before the Board, he was given sufficient opportunity to plead his case both in writing and at the hearing but he told the Board he had nothing to say at the hearing.

16. The rest of the grounds were not made in his previous leave application. As an appeal is not the occasion for an applicant to introduce new grounds, the Court of Appeal will not entertain new grounds^{^[6]}. In any event, the applicant does not have any evidence to refute the Board’s findings. The judge’s decision in refusing to grant extension of time and dismissing the leave application was well justified. The applicant has failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17. As the appeal is devoid of merits, we therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 2589

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found inArticle 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] Re Qadir Sher[2018] HKCA 160 at §11

TA QUANG VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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