Case Detail

DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 1381-EN-2023-12-29

DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 465/2022, [2023] HKCA 1381

On appeal from [2021] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 465 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 892 OF 2021)

________________________

BETWEEN
	Dang Van Tuan	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Au JA in Court

Date of Judgment:

29 December 2023

________________________

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 handed down on 12 April 2023 ([2023] HKCA 517). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 28 July 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 17 May 2023. 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 is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. He first came to Hong Kong illegally on 23 December 2018. He was arrested by the police on 29 December 2018 and was repatriated to Vietnam on 4 February 2019. He came to Hong Kong illegally again and on 29 May 2020 was arrested for wounding, unlawful remaining in Hong Kong, possession of forged Hong Kong Identity Card and criminal intimidation. He was sentenced to 15 months’ imprisonment. He lodged a non-refoulement claim on 11 October 2020 on the basis that he would be ill-treated or killed by his creditor because he is incapable of repaying the loan.

4. The applicant stated his grounds of appeal in the notice of motion filed on 3 May 2023 which may be summarized as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board and the Director of Immigration.
(2)  If the applicant returns to Vietnam, his life would be seriously threatened because the 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.
(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.
(4)  The Director of Immigration 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.

Analysis and disposition

5. Section 22(1)(b) of the Hong Kong Court of Final Appeal 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.

6. The applicant’s grounds are just bare assertions without particulars or evidence in support. He has not identified any mistakes in the judgment of the Court of Appeal nor raised 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).

7. For the above reasons, we refuse to grant leave to appeal to the the Court of Final Appeal and dismiss the notice of motion filed on 3 May 2023.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

CAMP 465/2022, [2023] HKCA 517

On appeal from [2021] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 465 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 892 OF 2021)

________________________

BETWEEN
	Dang Van Tuan	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Au JA in Court

Date of Judgment:

12 April 2023

________________________

J U D G M E N T

________________________

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

1. On 28 July 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 16 September 2021, the applicant filed a summons for extension of time in the Court of First Instance to appeal against that decision. His summons was dismissed by the judge on 12 October 2021[2].

3. On 7 November 2022, the applicant filed a renewed application with the Court of Appeal.

4. The applicant is a national of Vietnam of 40 years old. He first came to Hong Kong illegally on 23 December 2018. He was arrested by the police on 29 December 2018 and was repatriated to Vietnam on 4 February 2019. He came to Hong Kong illegally again and on 29 May 2020 was arrested for wounding, unlawful remaining in Hong Kong, possession of forged Hong Kong Identity Card and criminal intimidation. He was sentenced to 15 months’ imprisonment. He lodged a non-refoulement claim on 11 October 2020 on the basis that he will be ill-treated or killed by his creditor because he is incapable of repaying the loan.

The decisions of the Director and the Board

5. By a Notice of Decision dated 16 February 2021, 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].

6. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 25 May 2021. Although the Board accepted that the applicant had received verbal threats from his creditor and had been physically assaulted on some occasions, the Board found that the creditor did not really want to seriously harm or kill the applicant. The Board considered that the applicant’s injuries have not attained the requisite minimum severity and the risk is a localised one. The Board also found that the applicant’s problem arose from a private loan dispute. It was assessed that reasonable state protection will be available to the applicant in Vietnam and he should be able to relocate to other places in Vietnam to avoid the feared risk of harm. Therefore, the Board dismissed the appeal on 4 June 2021.

The intended judicial review

7. On 21 June 2021, the applicant filed a Form 86 to seek leave to apply for judicial review concerning his non-refoulement claim. He stated in his affirmation that he does not agree with the Board’s decision because he will be in danger and cannot return now.

The judge’s decision

8. As the applicant did not ask for a hearing, DHCJ K W Lung dealt with the application on paper. The judge directed that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director the interested party. Having examined the Board’s decision rigorously and with anxious scrutiny, the judge considered there is no error of law or procedural unfairness in the Board’s decision and hence the findings of the Board are not in any respect open to challenge. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 28 July 2021.

Grounds of intended appeal

9. The applicant only stated in his supporting affirmation that he is unrepresented and did not have access to any legal advice, without putting forward any grounds of appeal against the judge’s decision. He also failed to lodge any written submissions.

Analysis and disposition

10. 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.

11. 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 28 July 2021. When he took out the summons for extension of time to appeal at the court below on 16 September 2021, the applicant was late by 5 days exclusive of the court’s summer vacation in August.

12. The applicant’s application for extension of time to appeal was refused by the court below on 12 October 2021. He renewed the present application to the Court of Appeal on 7 November 2022 more than a year later. He did not provide any explanation for his substantial delay in making the renewed application to the Court of Appeal. As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

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. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[7]. The applicant already had the benefit of legal representation in presenting his case to the Director. Thus, his ground concerning the lack of legal advice is unmeritorious.

15. The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16. For the above reasons, there is no prospect of success in the intended appeal. We therefore dismiss the summons filed on 7 November 2022.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 2180

[2] [2021] HKCFI 2918

[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.

[7] Re Paswan Shibu Lal[2018] HKCA 249 at para 21