Re Bui Huu Tuan

CAMP 108/2022

[2022] HKCA 1534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 108 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2960 OF 2018)

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Before :  Hon Kwan VP and Cheung JA in Court

Date of Decision :  17 October 2022

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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) :

I.  Renewed application for extension of time to appeal

1.On 24 December 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 December 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 8 November 2017 rejecting his claim for non‑refoulement protection.

2.In his decision dated 25 November 2020, Deputy High Court Judge P Li refused to grant leave to the applicant for judicial review.

3.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time (for almost two weeks), the applicant took out an application on 24 December 2020 before the Judge requesting an extension of time to appeal.  The Judge rejected the applicant’s application on 25 March 2022.

4.Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 14 April 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.The applicant is a national of Vietnam. He entered Hong Kong illegally in January 2016 and lodged his claim for non‑refoulement protection on 3 March 2016 on the basis that he would be harmed or killed by his creditor if he is returned to Vietnam as he was unable to repay an outstanding loan. 

7.The details of the applicant’s claim have been summarized by the Judge at [1] to [7] of the CALL‑1 Form.

III.  The Director’s Decision

8.The Director decided against the applicant’s non‑refoulement claim on 8 November 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 29 August 2018 where the applicant gave evidence.  In essence, the Board did not accept the veracity of the applicant’s claims.  There was various implausible account of events in the applicant’s evidence, including unexplained inability to produce crucial documents, such as the loan agreement itself.   The Board also held that the applicant had failed to establish that he would face any real risk if returned to Vietnam.  In light of its findings, the Board dismissed the applicant’s claim on all applicable grounds on 20 December 2018.

V.  Decisions of the Judge

10.On 24 December 2018, the applicant filed his Form 86 for leave to appeal for judicial review of the Board’s decision.  He did not provide any grounds in support of his application and in his supporting affirmation, he repeated the dangers he will face in Vietnam and simply annexed the decision of the Board.  In his decision dated 25 November 2020, the Judge held there were no errors of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision.  The Judge found that the applicant failed to show any reasonable prospect of success in the intended judicial review.   

11.In his decision dated 25 March 2022, the Judge held that there was no satisfactory explanation to justify the delay and in any event, the Judge found there was no merit for the intended appeal.

VI.  Legal principles

12.In considering whether to extend time for appeal, 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.

VII.   Analysis

1)  Length of delay and reasons for the delay

13.The applicant was almost two weeks late when he filed his application for extension of time to appeal.  The applicant has not provided proper justification for the delay.  Nevertheless, we shall focus on the merits of this case. 

2)  Prospect of the intended appeal

14.In the applicant’s summons, affirmation and written submissions, he claimed that the decisions against him were reached unfairly.  He repeated the dangers that he will face from his creditor if returned to Vietnam, and referred to general principles of law regarding non‑refoulement claims without any particulars of specifics or elaborations as to their relevance.  These are not proper grounds of appeal. 

15.In our view, the applicant does not have any prospect of success in his intended appeal.  The Judge had considered all the relevant matters including the merits of his case when he refused to grant leave for judicial review and dismissed his application.

16.Since the applicant has not identified any error of law or procedural unfairness in the Judge’s Decision of 25 November 2020, the intended appeal cannot have any prospect of success.

VIII.  Disposition

17.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 14 April 2022.  

Applicant, unrepresented, acting in person