Re v. Trong Dai

CAMP 231/2023, [2025] HKCA 419

On an intended appeal from [2020] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 231 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2834/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 11 June 2020 refusing leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 18 June 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 14 January 2019 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 30 May 2014, and was arrested by the police on 16 June 2014.  Thereafter, he lodged a non-refoulement claim by way of written significations dated 18 and 20 June 2014 and 11 July 2018.

3.The applicant’s claim was based on a fear of being harmed or killed by his moneylenders.  The details of the applicant’s claim have been summarised by the Board at [14] of its Decision.

4.By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[1], persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4].

5.The applicant appealed to the Board.  After consideration of the applicant’s case on the papers, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found inter alia that there was insufficient evidence substantiating a genuine and substantial risk of harm posed to the applicant by his moneylenders in Vietnam, and that in any event, any risk of harm may be reduced by the applicant’s internal relocation to places such as Ho Chi Minh City or Ha Long City.

The Judge’s decision

6.The applicant filed a Form 86 out of time, on 26 September 2019, seeking to judicially review the Board’s Decision.  In the Form 86, the applicant failed to set out any grounds for review.  In his supporting affirmation, the applicant merely contended that his life was in danger in Vietnam.

7.On 21 May 2020, the applicant filed an affirmation into court, stating that he wished to “cancel this application for judicial review” and that he wanted to “go back to Vietnam”.

8.Taking into consideration the circumstances of the case, as well as the applicant’s ex parte application for withdrawal, the Judge by his decision in the CALL-1 Form[5] dated 11 June 2020 dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [2] to [4] of the CALL-1 Form as follows:

“[2] In his Form 86 the Applicant did not put forward any ground for seeking relief, and in his supporting affirmation he merely repeated his claim that he cannot go back to his home country because his life is still in danger over there.

[3] However, before his application could be dealt with by the court, he filed an affirmation on 21 May 2020 to request to withdraw his application as he wants to go back to Vietnam, in which case there seems to me no longer any basis for him to maintain his claim of fear of harm upon his return to Vietnam, and it would therefore be appropriate for his claim to be dismissed rather than withdrawn.

[4] In the premises and accordingly I dismiss his application.”

The present application for extension of time to appeal

9.The applicant’s last known address at the time of the Judge’s decision was at 304 Shang Shai Street, Yau Ma Tei (“the Address”).

10.According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 11 June 2020, and was not returned undelivered.

11.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 11 June 2020.

12.The applicant thereafter took out a summons in the Court of First Instance on 30 January 2023 seeking extension of time to appeal, in which his address was stated to be at 19 Argyle Street, Mong Kok (“the New Address”).  In the summons and in his supporting affirmation filed on the same date, he said he wanted to “re-open” his case because he was recently informed that his creditors had forced his family to convince him to return to Vietnam, and that he would “definitely … be killed if [he returned] to Vietnam”.

13.The applicant’s application to appeal out of time was dismissed by the Judge on 8 June 2023[6].

14.By a summons filed on 16 June 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant claimed that the CALL-1 Form, which was enclosed in the court’s letter sent to him on 11 June 2020, was “lost in post” and that by the time he received the letter the 14-day period during which he was permitted to lodge the appeal had already expired.

15.In his written submissions lodged on 29 June 2023, the applicant merely referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

16.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that the applicant has had knowledge of the Judge’s decision within the 14-day period within which he was permitted to lodge an appeal.

18.It was also incumbent upon the applicant to notify the court of any change of address as soon as possible, including that to the New Address, and any consequences of having failed to do so lie with him.  In any event, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

19.Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the serious delay.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.There was no reason for the Judge not to have dismissed the applicant’s leave application by reason of his ex parte application for withdrawal alone.

21.In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

22.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

25.For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 16 June 2023 is accordingly dismissed.

The applicant acting in person