Re Nguyen Van Thuy

CAMP 48/2025, [2026] HKCA 520

On Appeal From [2024] HKCFI 2714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 48 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1195 OF 2024)

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JUDGMENT

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

1.This is the applicant’s appeal against the order of Deputy High Court Judge To dated 17 January 2025 ([2025] HKCFI 235) (‘the EOT Decision’), refusing to grant extension of time to the applicant to appeal against the Judge’s earlier decision dated 10 October 2024 ([2024] HKCFI 2714) (‘the Leave Decision’).

2.By the Leave Decision, the Judge dismissed his application for extension of time for leave to apply for judicial review (‘the Leave Application’) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’) dated 19 March 2024 (‘the Board’s Decision’), whereby the Board dismissed his appeal/petition against the decision of the Director of Immigration (‘the Director’) dated 10 August 2023, refusing his non‑refoulement claim.

3.The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [5]‑[21] of the Leave Decision[1]. The Judge has set out in detail the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [23]‑[33] of the Leave Decision. The Judge has also set out in detail his reasons for refusing the extension of time to appeal application taken out by the applicant: see [1]‑[7] of the EOT Decision. We will not repeat those details herein.

4.By the Summons filed on 7 March 2025, the applicant sought to appeal against the EOT Decision but did not provide any ground of the intended appeal. On the same day, the applicant also filed a supporting affirmation, and it contained bare allegations such as complaining that he did not have access to legal advice and that he was unrepresented, or that a good ground of appeal was not considered at the leave stage, and that he did not receive the decision in time and was only informed by the Director when he went to report.

5.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court (Cap. 4A) (‘the RHC’).

I.  Discussion

6.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3]‑[8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

7.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. In deciding whether to extend time to appeal, the Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

8.The prospect of success of an intended appeal is important. The Court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

9.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

10.As noted by the Judge at [1]-[2] of the EOT Decision, the applicant first applied for extension of time to appeal before the Judge by way of a summons filed on 5 December 2024. By then, he was late for over one month in taking out his application, which amounted to substantial delay. Even when taking into account the applicant had changed his place of custody from Castle Peak Bay Immigration Centre to Tai Tam Gap Correctional Institution, the Court gave directions for him to file an affirmation explaining the delay and provide grounds for the intended appeal. The applicant did not comply with those directions: [2] of the EOT Decision. Further, the applicant was the one who bore the duty to inform the Court of his change of place of detention, with which he failed to comply. Even assuming that the applicant only received the decision on 19 November 2024 as he alleged, it still took the applicant 16 days to lodge his appeal which was in any event out of time by two days: [5]‑[6] of the EOT Decision.

11.More importantly, his intended appeal has no substance. At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal. In the absence of demonstrating any error in the Leave Decision, the applicant’s assertions are plainly not valid grounds of appeal. We see no basis to disturb the Leave Decision.

12.Accordingly, there is no prospect of success in the applicant’s intended appeal. It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

13.The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 7 March 2025 is dismissed.

Applicant, acting in person