Case Detail

CAMP 60/2021

[2022] HKCA 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 675 OF 2018)

________________________

BETWEEN
	Nguyen Duc Dong	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Judgment:

11 November 2022

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down 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 and Barma JA) handed down on 27 September 2021 ([2021] HKCA 1374). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 2 September 2020 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim[1].

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 7 June 2022 that the applicant shall lodge written submissions on or before 21 June 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it 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 4 January 2017 and was arrested by the police on 5 January 2017. On 23 January 2017, he raised a non‑refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay the loan if he returns to Vietnam.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 28 January 2021 [2].

5. On 18 February 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 27 September 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The applicant stated his grounds of appeal in the Notice of Motion and affirmation filed on 7 June 2022 which may be summarised as follows:

(1)  If the applicant returns to Vietnam, his life will be seriously threatened because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.
(2)  The Director of Immigration (“the Director”) suggested that the applicant could relocate to another place but it is completely unfeasible and it is possible for the creditor and gangster to find out the applicant’s new residence.
(3)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.
(4)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country.

Analysis and disposition

7. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

8. Section 22(1)(b) of the Ordinance 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 was late for more than 7 months in filing his Notice of Motion. He did not provide any explanation for the substantial delay. There is no good ground for the court to grant an extension of time for him to file the Notice of Motion.

10. In any event, the applicant’s grounds in the present application are bound to fail. The Court of Appeal had considered his submissions and given reasons for rejecting his application in the decision dated 27 September 2021. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Moreover, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 7 June 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 2205

[2] [2021] HKCFI 102

CAMP 60/2021

[2021] HKCA 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 675 OF 2018)

________________________

BETWEEN
	Nguyen Duc Dong	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Barma JA in Court

Date of Written Submission: 3 May 2021

Date of Judgment: 27 September 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 2 September 2020, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for seeking judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 9 October 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 16 September 2020. The applicant’s summons was dismissed by DHCJ Bruno Chan on 28 January 2021[2].

3. On 18 February 2021, the applicant filed the present summons with the Court of Appeal seeking leave to appeal against the decision dated 28 January 2021. This summons should be treated as a renewed application for leave to appeal out of time against the judge's decision of 2 September 2020: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4. The applicant is a national of Vietnam. He is 38 years old. He entered Hong Kong illegally on 4 January 2017 and was arrested by the police on 5 January 2017. On 23 January 2017, he raised a non‑refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay the loan if he returns to Vietnam.

The Director’s decision

5. By a Notice of Decision dated 20 September 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6. On 4 October 2017, the applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 19 January 2018. The Board found that the applicant came to Hong Kong to avoid repaying the loan instead of fearing to be harmed or killed by his creditor. The Board assessed that the applicant’s previous injuries are not serious at all and do not fall within the meaning of torture or the kind of ill-treatment contemplated in BOR 3. This also reflected that the creditor has no intention to kill the applicant. The Board further considered that the applicant’s problem arose from a private dispute and does not fall within the definition of persecution. It also held that the applicant should be able to live a normal life in other places in Vietnam to avoid the creditor and/or his men. Therefore, the Board dismissed the appeal on 13 March 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 19 April 2018 for leave to apply for judicial review against the decision of the Board.

The judge’s decision

8. DHCJ Bruno Chan dealt with the application on paper as the applicant did not request for an oral hearing. The applicant did not provide any specific grounds for his intended challenge. Notwithstanding this, the judge reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny. He concluded that there is no 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. Therefore, the judge held that there is no prospect of success in the applicant’s intended application for judicial review and dismissed the leave application on 2 September 2020.

Grounds of intended appeal

9. In the present application, the applicant did not state any grounds of appeal in his summons or affirmation.

10. In his written submissions, he reiterated the background leading to the loan and the failure to repay the loan as well as the description of the previous attacks and death threat from the creditor and/or his men. He also submitted that he tried to report the case to the police in Vietnam but the police refused to handle the matter.

Analysis and disposition

11. In considering whether to extend time for appealing against a decision refusing 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 respondent if an extension of time were granted.

12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 2 September 2020. The applicant took out a summons for leave to appeal out of time at the court below on 9 October 2020. He was late by more than three weeks.

13. The applicant told the judge at the hearing below that he did not notice the letter containing the decision in his mailbox. When he eventually retrieved the letter, the time for appeal has already expired. The decision was sent to the applicant’s address by post on the same day when the decision was handed down. It was the applicant’s own fault for failing to check his mailbox in a timely manner. The applicant’s explanation cannot justify his delay.

14. As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15. 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.

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. 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, no viable ground has been put forward by the applicant to reverse the judge’s decision. The applicant has also failed to adduce any evidence to refute the Board’s findings. He failed to show that he has any prospect of success in his intended appeal. We therefore refuse to grant leave to appeal against the judge’s decision of 2 September 2020 out of time and dismiss the summons filed on 18 February 2021.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 2205

[2] [2021] HKCFI 102

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

[4] 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.

[5] 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.

[6] 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.

NGUYEN DUC DONG v. TORTURE CLAIMS APPEAL BOARD

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