Re v. Tuan Anh

CAMP 131/2024, [2025] HKCA 259

On intended appeal from [2023] HKCFI 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 131 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 64 OF 2019)

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 23 February 2023[1] refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review.

2.The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

3.The applicant has filed a supporting affirmation with a written submission attached to it to support his application.

4.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.The applicant is a national of Vietnam aged 30. He was arrested by the police on 31 January 2016, after entering Hong Kong illegally. The applicant lodged a non-refoulement claim based on fear of being harmed or killed by his parents’ creditor due to their inability to repay the loan.

6.The applicant claimed that his parents borrowed from the creditor for the expansion of their farming and seedling business. When they failed to make repayment, the creditor and his people made verbal threats, vandalized their household items and on one occasion assaulted the applicant and his parents. Fearing for his personal safety, he fled to mainland China from where he sneaked into Hong Kong. His parents also left home and went into hiding. The details of his claim were set out in [6] of the Director’s 1^st decision.

7.By two decisions dated 8 August 2016 and 7 March 2017, the Director rejected the applicant’s claim. The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds while the further decision covers the BOR 2 risk[5] ground.

8.The Board heard the appeal at an oral hearing held on 19 June 2018 which the applicant attended remotely from Lai Chi Kok Detention Centre where he was detained. By its decision given on 27 September 2018, the Board dismissed the applicant’s appeal.

9.In gist, the Board found the applicant’s evidence vague, lacking in details, was internally inconsistent and differed in significant aspects from the account he gave in his non-refoulement application. The Board rejected his evidence as being incredible. The Board also found that, even on the applicant’s case, the assault did not attain the minimum level of severity and the future risk of harm was low. The Board further found state protection and internal relocation option were reasonably available, which would reduce any risk that the applicant might face. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the four applicable grounds and dismissed his appeal.

10.On 8 January 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Other than stating that his life would be in danger, he did not provide any grounds for seeking relief.

11.The application was out of time. Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application was late by 12 days. No explanation was given for the delay.

12.The Judge dealt with the application on the papers. By a Form CALL-1 dated 23 February 2023, the Judge refused to extend time and dismissed the application for leave to apply for judicial review. The Judge held that the intended judicial review had no reasonable prospect of success in that the applicant had not provided any valid ground for challenging the decisions of the Director and the Board, and there was no error of law, irrationality or procedural unfairness in the Board’s decision.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. On 18 January 2024, which was more than 10 months after the expiry of the 14-day appeal period, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on papers, and by his decision handed down on 20 March 2024[6], refused the application.

14.The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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.

15.The applicant was late by more than 10 months, which is at a serious delay. In the application made to the Judge, the applicant stated in the affirmation that he was unrepresented and had no means to instruct a lawyer, but he gave no elaboration. In the present application, the applicant did not offer any explanation for the delay. We do not consider what was stated in the affirmation in the application made to the Judge can satisfactorily explain the serious delay. In the circumstances, the applicant has to show that his intended appeal enjoys a real prospect of success.

16.When considering the merits of the intended appeal, we 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]. 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 judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

17.In the submission attached to his affirmation in support of the present application, the applicant stated that: (1) his wife is in Hong Kong and they have a baby boy born in March 2024; (2) there is no one to look after his wife and son if he were refouled to Vietnam; (3) he is unable to obtain proof of what happened to him in Vietnam because he has been detained by the Immigration Department; and (4) it is wrong to think that there will be police protection as the ruling party in Vietnam has full power and his life will be in danger.

18.For the reasons set out below, the matters raised in the submission do not amount to viable or arguable grounds of appeal:

(1) While we understand the applicant’s wish to look after his wife and son, it is not a relevant consideration as it is unrelated to his claim for non-refoulement protection.

(2) The Director and the Board are the primary decision makers. The Board had for reasons given in its decision found the applicant’s evidence incredible and rejected it. Both in the application for leave to apply for judicial review and in the applications for extension of time to appeal, the applicant has not pointed to any ground for challenging the Board’s decision. This being the case, there is no factual basis for his assertion that he will be in danger if he returns to Vietnam. There is also no proper basis for the Court to judicially review the Board’s decision.

(3) The applicant has not identified any error in the Judge’s decision. In light of the above analysis, the Judge is correct to hold that the intended judicial review has no reasonable prospect of success, and to refuse to extend the time for him to apply for judicial review. There is no ground for the Court of Appeal to interfere with the Judge’s decision.

19.In the circumstances, the intended appeal is devoid of merits. Given that the intended appeal has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 18 July 2024.

The applicant, unrepresented, acted in person.