CACV 243/2021
[2021] HKCA 1578
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 243 OF 2021
(ON APPEAL FROM HCAL NO 2655 OF 2018)
________________________
BETWEEN
| | NGUYEN VAN MINH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITON OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
| Before: | Hon Au and Chow JJA in Court |
| Date of Written Submissions: | 12 July 2021 |
| Date of Judgment: | 4 November 2021 |
________________________
J U D G M E N T
________________________
Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 6 May 2021 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 26 June 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 December 2017 rejecting the Applicant’s non-refoulement claim.
BACKGROUND
2. The Applicant is a national of Vietnam. He entered Hong Kong illegally on 3 September 2015, and was arrested on 4 September 2015. He lodged a non-refoulement claim on 7 September 2015.
3. The Applicant claims that if refouled to Vietnam, he would be harmed or killed by his creditor and/or the creditor’s subordinates as he was unable to repay his loan. Details of the Applicant’s claim have been summarised by the Judge at §5 of the CALL-1 Form.
4. By a Notice of Decision dated 12 December 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).
5. The Applicant appealed the Director’s Decision to the Board. On 8 May 2018, the Board heard the appeal.
6. On 26 June 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”). The Board was concerned about the Applicant’s credibility (see Form CALL-1 at §9). The Board concluded that the Applicant failed to establish any of the applicable grounds for non-refoulement protection.
THE JUDGE’S DECISION
7. On 23 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision, and a supporting affirmation, in which the Applicant repeated his claim and contended that it was unfair for the adjudicator to say that he could go back to Vietnam (§11).
8. The Applicant’s application for leave to apply for judicial review was late. Citing AW v Director of Immigration and William Lam [2015] HKCA 519 at §27, the Judge held that in considering whether to extend time for making an application for 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 putative respondent if an extension of time were granted (see Form CALL-1 at §12).
9. Citing Re Kartini[2019] HKCA 1022, the Judge held that the assessment of evidence, COI materials, 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 (§14).
10. The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§13), and concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§18).
11. Accordingly, on 6 May 2021, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review.
THIS APPEAL
12. In his Notice of Appeal dated 13 May 2021, the Applicant repeated the claim that he would be harmed by his creditor if refouled back to Vietnam. On the same date, the Applicant consented to this appeal being disposed of on paper without an oral hearing.
13. In his 2-page written submissions dated 12 July 2021, the Applicant again repeated his claim that he would be harmed by his creditor if refouled back to Vietnam, but did not point to any error in the Judge’s decision or reasoning.
DISCUSSION
14. Under Order 53, Rule 4 of the Rules of the High Court (“RHC”), Cap 4A, 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 unless the Court considers that there is good reason for extending the period within which the application shall be made. There was a delay of some 59 days in the present case.
15. It does not appear that the Applicant offered any explanation for the delay in the court below. In any event, this Court will go on to consider the merits of the appeal.
16. In non-refoulement cases, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1)).
17. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
18. The Applicant has failed to identify any errors of law or failure by the Judge to take account of relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.
19. For the above reasons, the present appeal has no merits, and is dismissed.
| (Thomas Au) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 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.