Case Detail

CAMP 8/2022

[2022] HKCA 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 8 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1268 OF 2021)

________________________

BETWEEN
	Nguyen Tuan Anh alias Dao Dung Minh	Applicant
	and
	Torture Claims Appeal Board /	Putative Respondent
	Non refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Judgment:

3 November 2022

______________________

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 (Kwan VP and Cheung JA) handed down on 20 May 2022 ([2022] HKCA 670). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 26 October 2021 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 31 May 2022 that the applicant shall lodge written submissions on or before 14 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 is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Vietnam. He was arrested in Hong Kong on 29 June 2020 and lodged his non-refoulement claim on 19 December 2021. His claim was made on the basis that he would be killed by his creditors in Vietnam due to an outstanding debt of some 2 billion Vietnamese Dong.

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 7 December 2021 [2].

5. On 7 January 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 20 May 2022 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 filed on 31 May 2022 which may be summarised as follows:

(1)  If the applicant returns to Vietnam, his life will be seriously threatened because most of the creditors and gangsters in Vietnam 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 gangsters to find out his new residence.
(3)  The Director did not consider 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

7. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

8. In the present application, the applicant does not have any reasonably arguable basis to show 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).

9. 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 31 May 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3155

[2] [2021] HKCFI 3528

CAMP 8/2022

[2022] HKCA 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 8 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1268 OF 2021)

________________________

BETWEEN
	Nguyen Tuan Anh alias Dao Dung Minh	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 Cheung JA in Court

Date of Written Submission: 20 January 2022

Date of Judgment: 20 May 2022

__________________

J U D G M E N T

__________________

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

1. On 26 October 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2. On 7 December 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3. On 7 January 2022, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order dated “12 November 2021” dismissing his application for leave to apply for judicial review. No order was made in these proceedings on the said date. The applicant may have intended to refer to the order dated 7 December 2021 refusing to grant extension of time for him to lodge his appeal against the order dated 26 October 2021. In any event, in light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 26 October 2021.

4. The applicant is a national of Vietnam. He is 34 years old. He was arrested in Hong Kong on 29 June 2020 for illegally staying in Hong Kong and for other offences. He lodged his non-refoulement claim on 19 December 2021 on the basis that he would be killed by his creditors in Vietnam due to an outstanding debt of some 2 billion Vietnamese Dong.

5. By a Notice of Decision dated 25 May 2021, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk [5] and persecution risk[6].

6. The applicant appealed against the Director’s decisions and an oral hearing of the appeal was held on 6 August 2021. The Board found the evidence of the applicant to be incredible, unreliable and/or implausible. The Board further found that the applicant could have relocated elsewhere in Vietnam and, in any event, he has failed to establish that he would face any real risk of harm in future if he was refouled there. Therefore, the applicant’s claim for non-refoulement was dismissed on 19 August 2021.

The judge’s decision

7. On 9 September 2021, the applicant applied for leave to apply for judicial review out of time against the decision of the Board. He simply stated in his affirmation that he disagreed with the Board, and that it was dangerous for him to return to Vietnam. As he did not request for an oral hearing, DHCJ Lung considered the application on paper.

8. The judge found that the applicant did not put forward any proper ground for his intended challenge of the Board’s decision, and there is no error of law or procedural unfairness in the Board’s decision. Thus, the judge dismissed the applicant’s application on 26 October 2021.

Grounds of appeal

9. The applicant did not provide any grounds of appeal in his summons and in his supporting affirmation. He merely deposed that he did not understand court procedure. In his written submissions, which would appear to have been copied from some pro forma document produced often before this Court, the applicant’s contentions may be grouped under two broad grounds:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and
(2) the Board acted in a procedurally unfair manner without properly assessing his credibility.

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 judge’s order was made on 26 October 2021. The applicant took out summons in the court below on 12 November 2021. He was late for two days and his explanation was repeated in his present summons, namely, that he did not understand court procedure and had no opportunity to clarify his case before the court. In our view, the applicant’s delay is unjustified.

12. Even though the delay is unjustified, in light of the very short delay, we will focus on the merits of the case in considering whether extension of time should be granted.

13. 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.

14. 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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15. The applicant’s written submissions are simply bare assertions and does not contain any arguable challenge against the decision of the judge. The judge has duly considered the applicant’s complaints against the Board and given a detailed explanation for rejecting the leave application in the judgment of 26 October 2021. The contentions in the applicant’s submissions do not engage with the judge’s reasoning. As noted earlier, they would appear to have been copied from some pro forma document and there is nothing to indicate that they should have any direct relevance and applicability to the present situation.

16. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 26 October 2021 and dismiss the summons filed on 7 January 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3155

[2] [2021] HKCFI 3528

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] 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).

[5] 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).

[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 TUAN ANH alias DAO DUNG MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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