Re Tran Van Canh
|
CAMP 158/2025, [2026] HKCA 1330 On Appeal From [2025] HKCFI 3249 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 158 OF 2025 (ON AN INTENDED APPEAL FROM HCAL NO 2548 OF 2024) _______________
_______________
_______________ J U D G M E N T _______________ Hon Au JA (giving the Judgment of the Court): 1.This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 1 August 2025 ([2025] HKCFI 3249) (“the EOT Decision”), refusing to grant extension of time to the applicant to appeal against the Judge’s earlier decision dated 12 June 2025 ([2025] HKCFI 2441) (“the Leave Decision”). 2.By the Leave Decision, the Judge allowed the applicant’s withdrawal application, pursuant to his own request, to withdraw his application 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 3 December 2024 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 10 September 2024, refusing his non-refoulement claim. 3.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. Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”). 4.Subsequently, by a cover letter from the Immigration Department dated 23 April 2026, this Court is informed by the Director that the applicant has lodged a request on 21 April 2026 to the Court to withdraw his present reapplication (“the Request”). The applicant also states that his problem in Vietnam is now solved and he wishes to return to Vietnam as soon as possible. 5.On the basis of the Request, we dismiss the applicant’s reapplication for extension of time to appeal against the Leave Decision. In any event, the present reapplication fails for lack of merits, which we will in any event dismiss as explained further below. BACKGROUND 6.By way of background, the applicant is a national of Vietnam. According to the applicant, he fled Vietnam for Hong Kong in late December 2023, and lodged a non-refoulement claim on the basis that he would be harmed and killed by his creditor owing to his unpaid debts. Factual details of the applicant’s claim can be found at paragraphs 3 ‑ 16 of the Board’s Decision. 7.His non-refoulement claim and his subsequent appeal to the Board were refused respectively by the Director and the Board, as he failed to substantiate his non-refoulement claim on the applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In particular, the Board also found that the applicant’s case was wholly unreliable and his feared ill-treatments were unlikely to materialize and that disputes with his creditor were in any event private in nature: see paragraphs 24 and 41 of the Board’s Decision. The Board also found that reasonable options for internal relocation are available to the applicant: see paragraph 34 of the Board’s Decision. 8.On 19 December 2024, the applicant lodged his Form 86 seeking leave to apply for judicial review against the Board’s Decision. On 20 May 2025, the applicant applied by affirmation to withdraw his leave application. 9.On 12 June 2025, after considering the applicant’s application and his request for withdrawal, the Judge allowed his withdrawal application. His reasons were stated at [2] ‑ [3] of the Leave Decision:
10.By a summons dated 9 July 2025, the applicant applied for extension of time to appeal against the Leave Decision. By that time his application was late for 13 days. The applicant contended that he thought he would be able to arrange for his problems to be solved in Vietnam but things did not turn out as he thought. After considering his application, the Judge considered that as the applicant’s withdrawal application was unequivocal and an informed and conscious decision, and that his intended appeal had no prospect of success, the Judge dismissed his application for extension of time: see [6] ‑ [9] of the EOT Decision. THIS APPLICATION 11.In the Summons filed herein on 15 August 2025, the applicant did not advance any intended grounds of appeal. By the supporting affirmation filed on the same day, the applicant merely asserted that:
12.The applicant further lodged a written statement on 15 August 2025. In that statement, he mainly reiterated his fear of being killed and harmed upon refoulement, and that he considered internal relocation unfeasible as he would face difficulties and obstacles. He also alleged that the Immigration Department failed to consider his human rights under various legislations, but failed to condescend upon particulars as to how they are related to his case. DISCUSSION 13.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. 14.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]. 15.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)]). 16.The applicant was late for 13 days in taking out his application. Although the delay is not insubstantial, for present purpose, we will focus on the merits of his reapplication. 17.In our view, his intended appeal has no substance. At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal. General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. The Judge allowed the applicant’s withdrawal application based on his own request. The applicant has also failed to point out any error in the Board’s Decision and the Leave Decision on public law grounds. His intended appeal is a nonstarter. 18.For the above reasons, 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. 19.The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 15 August 2025 is dismissed.
The applicant acting in person [1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. |
Cases cited in this judgment