RE BUI DO SON

CAMP 219/2024, [2025] HKCA 508

On intended appeal from [2024] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 219 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1517 OF 2019)

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J U D G M E N T

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

1.  This is a renewed application by the applicant for extension of time to appeal the decision of Deputy High Court Judge Lung (“the Judge”)  dated 11 July 2024 ([2024] HKCFI 1679)  dismissing his application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  refusing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

3.  The applicant has filed an affirmation and provided a statement 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 entered Hong Kong illegally and was arrested on 1 August 2016.  He raised a non-refoulement claim based on fear of being harmed or killed by his creditor due to his family’s inability to repay a loan.  The details of his claim were set out in [6] of the Director’s decision.  In gist, the applicant claimed that his parents took out a loan from a triad-related money lender to invest in a trading business.  When the family failed to make repayment, the creditor and his gang forced the applicant to smuggle illegal drugs, threatened to kill him and also assaulted him.  The police took no action on his complaint.  Fearing for his personal safety, he left for mainland China from where he sneaked into Hong Kong.

6.  By a decision dated 5 October 2018, the Director rejected the applicant’s claim under the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] ground.  

7.  The Board heard the applicant’s appeal at an oral hearing held on 3 April 2019.  By a decision dated 31 May 2019, the Board dismissed the appeal.  In gist, the Board accepted that his parents had borrowed a loan which they could not repay, but found no reliable evidence to show that the creditor and his men were triad members, influential or related to the state, or could locate the applicant nationwide.  The Board also found the threat and assaults to be of low intensity and frequency and did not meet the minimum standard of severity.  The Board did not accept there was a real risk that the applicant would suffer serious harm if refouled.  The Board also found state protection was available to the applicant.  The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.  

8.  On 4 June 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than reiterating the basis of his claim, the applicant did not provide any substantive grounds for seeking relief.  

9.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By a Form CALL-1 dated 11 July 2024, the Judge refused to give leave for applying for judicial review, finding that the intended judicial review was not reasonably arguable and had no reasonable prospect of success.  Specifically, the Judge (at [19])  pointed out that the applicant failed to raise any valid ground to refute the Board’s finding that state protection was available to him.

10.  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.  The 14-day period for the applicant to appeal ended on 25 July 2024.

11.  By a summons filed on 14 August 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 24 September 2024 ([2024] HKCFI 2481)  refused the application. 

12.  By a summons filed on 8 November 2024, the applicant made an application for leave to appeal out of time against the Judge’s decision dated 24 September 2024. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision of 11 July 2024.  

13.  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. 

14.  The applicant was late by 19 days, which is not an insignificant delay.  In the Court below, the applicant said that he did not receive the letter from the Court.  In the present application, he did not provide any explanation for the delay, and merely said in his affirmation that there was a good ground of appeal that had not been considered in the application for leave to apply for judicial review, but did not set out what the ground was.  We note from the court record that the Form CALL-1 was sent to an address obtained from the Immigration Department but was returned undelivered.  This address was different from that stated in the summons applying for time extension and the supporting affirmation.  Although the duty is on the applicant to inform the court promptly of any change in his address, in view of the fact that the delay was not serious, we propose to focus on the merits of the intended appeal.

15.  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.

16.  In his summons and supporting affirmation, the applicant has not put forward any substantive ground to support the intended appeal.

17.  In the statement that was lodged together with the present summons, the applicant stated that (a)  the Judge’s decision was unsatisfactory; (b)  the creditors and gangsters in Vietnam are cruel and violent and his life would be seriously threatened or he might even die; internal relocation was not feasible; (c)  he feared he would be tortured by the Vietnamese police as he was wanted by them for disturbing the public order; and (d)  the Director had not considered his human right.

18.  We are of the view that the matters stated in the Statement do not constitute viable arguments in support of the intended appeal.  Importantly, they do not identify any error in the Judge’s decision.  Neither do they show any error of law, irrationality or procedural irregularity or unfairness in the Board’s decision.  Further, in light of the Board’s findings as summarised in [7] above, there are no basis for the assertions made in the Statement.  The applicant has therefore failed to show that his intended appeal has any merit, let alone a real prospect of success.  

19.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 8 November 2024.