Re v. Huu Hoi

CACV 256/2020

[2020] HKCA 932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 256 OF 2020

(ON APPEAL FROM HCAL NO. 1676 OF 2018)

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Before : Hon Kwan VP and Cheung JA in Court

Date of Written Submission : 6 October 2020

Date of Decision : 17 November 2020

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.1On 20 August 2018, the applicant issued his application for leave for judicial review by Form 86 against the decisions of the Director of Immigration and Torture Claims Appeal Board (‘the Board).  The applicant’s application was late being outside of the three‑month requirement under the Rules of the High Court (Cap. 4A) Order 53, rule 4 as the Board’s Decision was handed down on 8 May 2018.  Therefore, Deputy High Court Judge K. W. Lung treated the application as an extension of time for leave for judicial review application.  The Judge refused the application on 27 December 2019 (‘Judge’s Decision’).  Subsequently, the applicant made an application on 30 December 2019 for leave to appeal against the Judge’s Order of 27 December 2019.  On 2 July 2020, the Judge dismissed his application (‘Judge’s Leave Decision’).  On 10 July 2020, the applicant made a further application under a notice of appeal to this Court for what is essentially a renewed application for extension of time to appeal: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

1.2On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  From 14 July 2020 onwards, the refusal of a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review, and so the decision is appealable as of right by reason of Order 59, rule 21(1)(g): at paragraph 42 of H v Director of Immigration.  In other words, there is from 14 July 2020 onwards no further need under section 14AA of the High Court Ordinance (Cap. 4) for a non-refoulement claim applicant to seek leave to appeal from the first instance judge before he/she may appeal directly.

1.3However, the applicant still has to bring his application to appeal within 14 days as prescribed under Order 53, rule 3(4) of the Rules of the High Court.  Thus, by the time the applicant’s notice of appeal was filed on 10 July 2020, the applicant was already out of time to appeal against the Judge’s Decision: see Re Ahmed Sajjad [2020] HKCA 733 at [7]-[8].

1.4Given the circumstances, we are prepared to treat the applicant’s notice of appeal application as an application for extension of time to appeal against the Judge’s Decision.

2)  Factual background

2.Briefly stated, the applicant is a national of Vietnam.  He entered Hong Kong illegally on 15 January 2015.  He was arrested on 24 June 2015.  He subsequently raised a non‑refoulement claim based on his fear that he would be harmed or killed by the creditors and the creditor’s elder brother and his subordinates in Vietnam because he was unable to pay off his debts.

3)  The Director’s Decision and the Director’s Further Decision

3.1The Director decided against the applicant’s non‑refoulement claim on 12 August 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2By a Further Decision of the Director dated 20 March 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.The applicant appealed against the Director’s Decisions to the Board.  The Board dismissed the applicant’s appeal on 8 May 2018.  In gist, the Board found that the applicant fabricated his story.  The Board found it incredible that the alleged attackers did not attack the applicant’s parents as well during the alleged attack.  The applicant said the incidents were his bitterest life experience yet he got his loan amount wrong.  There were many contradictions in his story that the Board could not accept that the claimant was even tortured.  Even if the stories could be true, the applicant’s story had nothing to do with the state.  State protection and internal relocation were possible.

5)   Decisions of the Judge, Judge’s Leave Decision, Notice of Appeal, Applicant’s Written Submissions     

5.1The applicant did not request an oral hearing for his application for leave to apply for judicial review.  He appeared before the Court pursuant to the Court’s invitation to attend.   

5.2The Judge held on 27 December 2019 that the delay was short and analysed the applicant’s merits.  The Judge held that the applicant requested him to give his decision in English.  He held that the applicant confirmed before him that he was able to speak freely to the Immigration Officer and the Adjudicator.  The Director’s Decisions were explained to him by his lawyer.  The Board’s Decision was explained to him by his friend. The Judge held that there was no factual basis to support the applicant’s application. There was no reasonable prospect of success.

5.3On 2 July 2020 the Judge dismissed the applicant’s leave application.  He held that the applicant failed to indicate which part of his decision was wrong.

5.4The applicant’s notice of appeal dated 10 July 2020 was written in Chinese.  It stated that the Judge’s Decision was in English and he could only understand with the help of a friend that his appeal was refused and that he is to be refouled.  The applicant further stated that he was trying to settle his indebtedness with his creditors and if refouled his life would be in danger.  He also stated that Hong Kong and Vietnam have different social norms, and in Vietnam creditors are vicious towards debtors whose lives are threatened.

5.5On 6 October 2020, the applicant lodged his one‑page written submission to this Court.  In short, he submitted his reason for lateness and sought this Court for permission to appeal out of time.

6)  Legal principles

6.As mentioned above, pursuant to Order 53, rule 4 of the Rules of the High Court, an applicant has three months to lodge an application for judicial review against the Board’s Decision. An applicant who fails to do so cannot do so unless extension of time to appeal is granted.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal; and

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1The Judge in his Judge’s Decision did not find against the applicant for his lateness in making an application for judicial review against the Board’s Decision, see the Judge’s Decision at paragraphs [14] to [16].  He went on to analyse the merits of the applicant’s case.

(2)  Prospect of the intended appeal

7.2Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.3In the present application, the applicant in his notice of appeal and written submissions merely stated that his life will be in danger if refouled because his creditors are violent.  The situation in Vietnam is different from Hong Kong since the creditors there are vicious.  He stated that the reason for his late application was his purported address being confusing.  He further stated that he did not understand English.  We are of the view that these are bare allegations unsupported with reason nor evidence.  No particulars were provided by the applicant.  The applicant requested the Judge to write his decision in English.  Further, the Board’s Decision against the applicant was based on its findings that the applicant’s case was incredible.  It was a decision written in traditional Chinese, and the applicant must have understood what was written. There is no merit in the applicant’s intended appeal.

7.4The applicant has not identified any error in the decision of the Judge.  We are of the view that the intended appeal does not have any prospect of success.

8)  Disposition

8.As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we dismiss the applicant’s notice of appeal filed on 10 July 2020.

The applicant, unrepresented, acting in person