Re v. Van Dat

CAMP 89/2023, [2024] HKCA 60

On Appeal From [2022] HKCFI 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 89 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 112 OF 2022)

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DECISION

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

1) Renewed application for extension of time to appeal

1.On 4 February 2022, the applicant issued his application for leave for judicial review by Form 86 in HCAL 112/2022 out of time. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 27 April 2020 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 12 July 2016 and 1 December 2016 rejecting his non-refoulement claim. Deputy High Court Judge KW Lung refused to grant extension of time for leave for judicial review on 10 May 2022.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 24 May 2022). Being out of time for over four months, the applicant took out an application on 20 October 2022 before the Judge requesting an extension of time to appeal. The Judge on 18 November 2022 rejected the applicant’s application for extension of time to appeal.

3.On 28 February 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.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 his exhibit enclosed with his affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.Briefly stated, the applicant is a Vietnam national. He had entered Hong Kong illegally on previous occasions and was arrested and convicted for various criminal offences. After serving his sentences, he returned to Vietnam. He last entered Hong Kong illegally in March 2013 via the Mainland. He was arrested and convicted of the offences of illegally remaining in Hong Kong and breach of deportation order. Subsequently, the applicant raised his non-refoulement claims by written representations in December 2013 and April 2014 alleging that he would be harmed or killed by the Vietnamese authorities due to his homelessness. He also claimed he would be killed by his creditors because he was unable to repay the debt. He also claimed that he was suffering from HIV and tuberculosis. Then on 5 January 2016 he applied by way of non-refoulement claim form for non-refoulement protection.

3) The Director’s Decision

6.The Director decided against the applicant’s non-refoulement claim on 12 July 2016. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.The Director decided against the applicant’s right to life claim on 1 December 2016 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4) The Board’s Decision

8.The applicant appealed against the Director’s decisions to the Board. A hearing was conducted on 14 January 2020 where the applicant did not appear before the Board. The Board dismissed the applicant’s appeal on 27 April 2020 and the Director’s decisions were confirmed. The Board held that after consideration of the applicant’s evidence there were special circumstances which justified the Board to accept the applicant’s late filing of his notice of appeal to the Board. The Board held that there was no evidence that the applicant would be mistreated because of his alleged homelessness. The Board held that there was no real risk of the applicant suffering harm due to his homelessness. The Board held that in the absence of further evidence, even if the Board accepted that the applicant suffered from HIV and/or tuberculosis, there was no evidence to suggest that upon his return to his home country he would be unable to obtain treatment or would be harmed due to his conditions. The Board held that the applicant does not meet any of the available non-refoulement grounds.

5) Decisions of the Judge

9.In his decision dated 10 May 2022, the Judge held that no valid ground was provided by the applicant to challenge the Board’s decision. There was no error of law or procedural unfairness.

10.In his decision dated 18 November 2022, the Judge held that the applicant did not provide reasons for the delay but he simply asked for leave. The Judge held that the applicant failed to raise any valid reason to show any realistic prospect of success in his intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

11.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.

7) Analysis

(1) Length of delay and reasons for the delay

12.Under Order 53, rule 4 of the Rules of High Court, the applicant had three months to take out an application for leave for judicial review from the date of the Board’s decision.

13.The Board’s decision was handed down on 27 April 2020. The deadline for a judicial review application was 26 July 2020. The applicant was over one year and six months late when he filed his application for judicial review on 4 February 2022. The applicant provided no reasons for his delay.

(2) Prospect of the intended appeal

14.In the applicant’s summons and affirmation, the applicant stated that the decision was unfair and procedurally improper because he was not allowed to state or clarify his case. In the written submissions attached to his affirmation, the applicant repeated the allegation and stated that the Judge had not considered that he was a litigant in person and that he was unrepresented. He claimed that he did not receive the notice to attend the Board hearing because he was homeless. He then criticised the decision of the Directors.

15.In our judgment, the applicant does not have any prospect of success in his intended appeal.

16.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either extension of time for leave for judicial review on two occasions. The applicant chose not to request an oral hearing for his judicial review application. He had not set out any grounds in that application.

17.Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

18.As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 28 February 2023.

Applicant, unrepresented, acting in person