RE BUI MINH HAI

CAMP 182/2021

[2021] HKCA 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 435 of 2018)

____________________

____________________

________________

JUDGMENT

________________

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

1.  On 24 September 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 2 July 2020 refusing his application for leave to apply for judicial review.     

2.  On 11 October 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicant has not put in any written submission.

3.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if 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.

6.  The notice of motion set out two grounds in support of the intended appeal to the Court of Final Appeal as follows:

(1)  The judges were wrong as a matter of law in not having applied the principles of irrationality to the decision made by the Director of Immigration in refusing his application for judicial review and in the appeal.

(2)  The judges were wrong as a matter of law in not having applied the principle of procedural unfairness to the decision of the Director.

7.  The affirmation is substantially the same as the affirmation filed on 20 May 2021 in support of the application for extension of time (see [17] of our judgment).  Essentially, the applicant contended that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review and it is a matter of public importance how the limitation act is being used against the litigants and the Court of Final Appeal should hear this.”           

8.  The grounds and matters put forward in the notice of motion and the affirmation do not constitute viable grounds for giving leave to appeal.  Importantly, they do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination. 

9.  Further, as pointed out in [8] and [17] of our judgment, the applicant did not put forward any ground in support of his intended judicial review and his intended appeal from the judge’s decision.  The grounds in the notice of motion contending that the judge and this Court failed to consider irrationality and procedural unfairness are therefore misplaced as no such complaints have been raised before the Court. 

10.  As to the point about limitation raised in the affirmation, it is unclear what is the argument that the applicant seeks to advance, and how it is a question of great general or public importance.                             

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.

[1][2021] HKCA 1390.

CAMP 182/2021

[2021] HKCA 1390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 435 of 2018)

____________________

____________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 2 July 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 15 May 2017 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 2 February 2018 dismissing his appeal against the Director’s decision.

5.  The applicant is a national of Vietnam aged 30.  He had previously entered Hong Kong illegally and was arrested by the police on 21 May 2015.  He was repatriated to Vietnam on 24 June 2015.  On 5 July 2016, the applicant surrendered to the Immigration Department and admitted to having illegally entered Hong Kong in April 2016.  He raised a non-refoulement claim on 6 July 2016 based on fear of being harmed or killed by his creditor because he has not been able to repay his loan.  The details of the applicant’s claim were set out in the Director’s decision at and [6] and the Board’s decision at [9] to [22] and summarised by the Judge at [1] to [6] of the Form CALL-1.  We will not repeat them.     

6.  By his decision dated 15 May 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 18 December 2017.  By its decision dated 2 February 2018, the Board dismissed the appeal.  The Board found the core of his account, in particular the alleged assault and threat by his creditor, lacked credibility. The Board rejected his evidence, and did not accept he was harmed by creditors or debt collectors.  The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Vietnam, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 19 March 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not set out any ground for seeking relief.  He only stated in the affirmation that if he returned to Vietnam, his life would be in danger.    

9.  By a Form CALL-1 dated 2 July 2020[5], the Judge refused to give leave to apply for judicial review.  The Judge explained his decision at [12] to [16] as follows:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246;Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 71 of its decision with the benefit of hearing him in evidence and in answer to questions raised on his claim at the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

14. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”       

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 16 July 2020.

11.  By a summons filed on 4 January 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing held on 21 April 2021, at which the applicant was absent.  By his decision handed down on 6 May 2021[6] refused the application. 

12.  On 20 May 2021, the applicant filed the present summons to appeal the Judge’s 6 May 2021 decision. This is not a proper procedure.  The proper course is to make a further application to this Court for extension of time to appeal under Order 59 rule 2B(3) of the Rules of the High Court.  We will treat this application as a renewed application for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was late by over five months, which is substantial.  Both before the Judge and in the present application, the applicant explained that he did not have money to seek legal advice on procedure, but he understands there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.   The applicant, however, has not explained what steps he had taken to find out the appeal procedures.  Like the Judge, we are not satisfied that he has satisfactorily explained the long delay.

15.  As to the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  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.

17.  In the present application, the applicant has not provided any ground of appeal.  He merely asserted in the affirmation that there is a good ground of appeal but has given no elaboration or details of it. 

18.  In the application below, the applicant has not shown any legal errors, irrationality or procedural irregularities in the Board’s findings and decision.  As the Board had rejected the factual basis of his claim, the applicant’s intended judicial review has no prospect of success.  The Judge is correct in refusing leave to apply for judicial review.

19.  Given that the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 20 May 2021.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the 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.

[3] 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.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5][2020] HKCFI 1297.

[6][2021] HKCFI 1141.