RE NGUYEN XUAN DIU

CAMP 94/2021

[2022] HKCA 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 94 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 373 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 7 September 2021, this Court handed down our judgment ([2021] HKCA 1283) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 5 August 2020 which refused to give him leave to apply for judicial review.     

2.  On 17 December 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.  He also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 has been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by more than two months, which is substantial delay.  The applicant explained in his affirmation that because his Recognizance document had become blurred, he could not take his oath and lodge his appeal documents, and had to apply and wait for the issue of new Recognizance document by the Immigration Department.  We note that the Director of Immigration has not responded to the applicant’s application.  We are prepared to accept the applicant’s explanation for the delay. 

7.  We turn next to consider the merits of the intended appeal.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

8.  The notice of motion stated that the applicant’s life would face serious threat or even death upon his return to Vietnam because he has yet to agree on a repayment plan with the creditors, who are cruel and violent and have no regard for law.  It also complained that the Director of Immigration did not consider the applicant’s human rights under the Basic Law, the Hong Kong Bill of Rights Ordinance and the ICCPR, and ordered his deportation.   The applicant further complained in his affirmation that our decision was reached unfairly, without allowing him an opportunity to clarify his case and situation in his country.

9.  The written submission, apart from repeating what was said in the notice of motion and affirmation, also quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim. 

10.  We are of the view that the matters set out in the notice of motion, affirmation and written submission do not afford any basis for granting leave to appeal.  Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any 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 giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.  

CAMP 94/2021

[2021] HKCA 1283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 94 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 373 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 5 August 2020[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  He has also lodged a written submission on 21 May 2021 to support his application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, 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 Torture Claims Appeal Board (“the Board”) dated 21 June 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 25 November 2016 which rejected his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 45.  He entered Hong Kong illegally and surrendered to the Immigration Department on 15 June 2015.  He later raised a non-refoulement claim.

6.  The applicant’s claim is based on his fear of being harmed or killed by his several creditors and their followers due to his inability to repay his loans.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the CALL-1 Form dated 5 August 2020 at [2] to [5].  We will not repeat them.     

7.  By his decision dated 25 November 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 9 June 2017 during which he gave evidence and answered questions from the Board.  By its decision dated 21 June 2017, the Board dismissed the appeal.  Primarily, the Board accepted that the applicant operated a pawn shop and was in the business of money lending, and might have defaulted in making repayments to his own creditors.  The Board, however, found the rest of his claim, including death threats and attacks by his creditors and their followers to have been fabricated.  The Board was of the view that, in any event, internal relocation options were reasonably available, which would reduce or negate any risk of harm that the applicant may face.  The Board concluded that the claim failed on all applicable grounds.

9.  On 8 March 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief.  He merely stated in his affirmation that he would be in danger if he were to return to Vietnam and asked to be allowed to stay in Hong Kong.

10.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose.  When the applicant filed his Form 86, it was more than eight months after the Board’s decision. The applicant’s application for leave to apply for judicial review was therefore more than five months late.  

11.  The Judge refused to extend the time for the applicant to apply for leave to apply for judicial review and gave his reasons in [13] to [18] of the Form CALL-1 as follows:

“13. In the Applicant’s case, a delay of 5 ½ months must be regarded as very substantial or excessive, for which the Applicant did not give any explanation either in his Form or affirmation, and as he did not request for any oral hearing, I found that he has failed to provide any good reason for his serious delay.

14. As for the merits of his intended application, as already noted above, nor has the Applicant provided any valid ground to challenge the Board’s decision other than asking the court to allow him to remain in Hong Kong, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

15. 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.

16. The fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. 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.

18. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

12.  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 decision within 14 days after it was made. 

13.  By a summons filed on 7 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 4 February 2021, and by his decision handed down on 16 March 2021 refused the application.  On 29 March 2021, the applicant filed the present summons to appeal against the Judge’s decision. This is not a correct step to take.  The proper procedure is to make a further application to this Court for extension of time to appeal the Judge’s decision of 5 August 2020.  We will treat the summons as a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

14.  Section 31(1) of the High Court Ordinance, Cap. 4 provides:

“Where by any law regulating civil procedure, or by any special order of the High Court, any period not exceeding one month is appointed or allowed for the doing of any act or the taking of any proceeding, no days included in the Summer vacation shall be reckoned in the computation of such time, unless the Court otherwise directs”.

15.  By reason of section 31(1), the month of August, which is the Summer Vacation[6], is to be excluded in calculating the 14 days for the filing of a notice of appeal.  As the Judge’s decision was dated 5 August 2020, the 14-day period for the applicant to file a notice of appeal only began to run from 1 September 2020 and would only expire on 14 September 2020.  Hence, on 7 September 2020, the applicant did not have to file the summons for extension of time and could have simply filed a notice of appeal instead.

16.  Be that as it is, the time for the applicant to appeal the Judge’s 5 August 2020 decision has since expired.  As matter now stands, the applicant will require an extension of time to appeal the Judge’s decision.

17.  In considering whether to extend time for appealing against the refusal of 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. 

18.  In view of the matters discussed in [14] to [16] above, we are of the view that the applicant’s delay is excusable.  We will focus on the merits of the applicant’s intended appeal.

19.  In assessing the merits of the intended appeal, the court 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].

20.  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.

21.  The applicant has not provided any ground for his intended appeal.  He merely stated in his affirmation that: “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.” 

22.  The applicant’s written submission stated that he learnt from a telephone call he made to Vietnam that his enemies were still looking for him and had threatened to kill him if they found him.  The applicant said he was afraid and terrified.  He also stated that he has married in Hong Kong with one son and his wife is pregnant with their second child.  He asked to be allowed to stay in Hong Kong to look after the family.          

23.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)   What was stated in the applicant’s affirmation are bare assertions with no elaboration on the specific grounds of appeal that the applicant seeks to put forward.  As such, they do not amount to proper grounds of appeal.

(2)   Assessment of credibility and risks of harm is a matter for the Board, which is the primary decision maker.  Given that the Board had rejected the applicant’s claim of having been threatened and assaulted by his creditors and their followers, his assertion of fear of harm in the written submission cannot amount to arguable ground of appeal. 

(3)   As to the claimant’s personal and family circumstances, they also do not afford grounds for overturning the Judge’s decision.        

24.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to extend the time for applying for judicial review.           

25.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to extend time for applying for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  

26.  For the above reasons, we dismiss the applicant’s summons filed on 29 March 2021.