RE TRAN VAN ANH

CAMP 274/2023, [2025] HKCA 408

On Appeal From [2023] HKCFI 1377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 274 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 325 OF 2023)

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J U D G M E N T

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

1.  On 9 August 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge To (“DHCJ To”)  dated 23 May 2023 ([2023] HKCFI 1377)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.  On 3 August 2023, Deputy High Court Judge Bruno Chan (“DHCJ Chan”)  refused to grant the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1936)  (“the EOT Decision”).

2.  The intended judicial review was against the “decision” of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 15 December 2022 (“the Board’s Decision”).

3.  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”).

4.  Subsequently, by a letter dated 28 December 2023[1], the applicant contended that his problem in Vietnam was already solved and he could return safely to Vietnam.  He thus requested to withdraw his present reapplication for extension of time to appeal and hoped to return to Vietnam.

5.  On the basis of his request to withdraw his application, we dismiss the applicant’s present reapplication for extension of time to appeal.  In any event, the present reapplication also fails for lack of merits, as explained further below.

BACKGROUND

6.  The applicant is a national of Vietnam.  He was last arrested by the police on 30 March 2022 and was charged for illegal entry into Hong Kong and remaining without the permission of the Director on 31 March 2022.  On 27 May 2022, he raised a non-refoulement claim on the basis that, if refouled, he would be killed and harmed by his creditor in Vietnam.

7.  By a Notice of Decision dated 26 July 2022 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

8.  By a Notice of Appeal filed on 9 August 2022, the applicant subsequently appealed against the Director’s Decision to the Board.  On 8 December 2022, the applicant filed a notice dated 5 December 2022 to withdraw the said Notice of Appeal, confirming that he withdrew his appeal out of his own free will and that he fully understood the consequences of his withdrawing of his appeal, including that no further action would be taken by the Board and the Director’s Decision shall remain in force.  By the Board’s letter dated 15 December 2022, the Board informed him that pursuant to his withdrawal notice, no further action would be taken by the Board in respect of his appeal, and that the Director’s Decision remained finally determined.

9.  On 2 March 2023, the applicant filed a Form 86 dated 7 February 2023 to apply for leave to apply for judicial review of the Board’s Decision.  In his supporting affirmation, he merely contended that he did not agree with the Board’s Decision and wanted to file an application for judicial view because he could not return to his home country at that time.

THE JUDGE’S DECISION

10.  As the applicant did not ask for an oral hearing, DHCJ To considered his application on paper.  On 23 May 2023, DHCJ To dismissed his application. His reasons were stated at [2] - [4] of the Leave Decision:

“2. Enquires with the secretariat of the Board revealed that no such Decision had been made by the Board in respect of the Applicant. What happened was that on 9 August 2022 the Applicant filed a Notice of Appeal (‘NOA’)  against the decision of the Director of Immigration (the ‘Director’)  in his Notice of Decision dated 26 July 2022 refusing his application for non-refoulement protection (the ‘Notice’); and then on 8 December 2022 before his appeal was determined he filed a notice to withdraw the said NOA (the ‘withdrawal notice’). Upon receipt of the withdrawal notice, the secretariat advised him by letter dated 15 December 2022 in accordance with the provisions in Section 37ZT of the Immigration Ordinance that his NOA having been withdrawn, no further action will be taken by the Board in respect of his appeal; that the decision of the Director in the Notice remains; and that his non-refoulement claim is finally determined. The Board never made any Decision in respect of the Applicant’s appeal.

3. Section 37ZT of the Immigration Ordinance provides as follows:

(1)  A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed)  may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2)  An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.

4. The Applicant filed the withdrawal notice dated 5 December 2022 confirming that he withdrew his appeal out of his own free will; that he fully understood the consequences of his withdrawing the appeal, including that he brought the appeal to an end even though the merits of which have not been determined; that no further action shall be taken by the Board in relation to the appeal; and that the decision of the Director which he had appealed/petitioned against shall remain in force. As his decision to withdraw was validly made with knowledge of the consequence, his appeal was withdrawn in accordance with section 37ZT. There was no appeal before the Board on which the Board could make or could have made any decision. The decision of the Director in his Notice remains in force and is final. As no decision was made by the Board, there is no subject matter for judicial review. Accordingly, the Applicant’s leave application is dismissed for want of subject matter.”[6]

11.  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. No notice of appeal was filed by the applicant within the 14-day period.

12.  On 8 June 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was two days late with his intended appeal.  In his affirmation, he merely contended that he understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review”, without specifying what the said ground was.

13.  The applicant however failed to attend the hearing fixed before DHCJ Chan on 13 July 2023.  Accordingly, his application was determined on paper.  On 3 August 2023, DHCJ Chan dismissed the applicant’s application.  DHCJ Chan held that as the applicant failed to put forth any proper or valid proposed ground of appeal, there was no prospect of success in his intended appeal and it would be futile to extend time for a hopeless appeal.

THIS APPLICATION

14.  By a summons, a supporting affirmation together with a written statement filed on 9 August 2023 to the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  No ground was put forth by the applicant in his summons.

15.  In his supporting affirmation, the applicant stated:

“1. The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.

2. I believe that merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.

3. I sincerely hope the Court to exercise its discretion to allow me to appeal out of time.” (sic)

16.  In his written statement, the applicant merely claimed that if refouled, he would be seriously threatened or killed by the creditors and gangsters as they disregarded the law.  He further claimed that internal relocation would be unfeasible as there would be many difficulties and obstacles.  His health was not good and that he was also not an active person. He also feared that the creditors and gangsters would find him.  He further asserted that the Immigration Department failed to consider various legislations but failed to particularise his assertion.

17.  Contrary to the directions of the Registrar of Civil Appeals dated 9 August 2023, the applicant did not lodge any written submissions.

18.  As mentioned above, by a letter dated 28 December 2023, the applicant wrote to the court requesting to return to Vietnam as his problem was solved and it would be safe for him to return.

DISCUSSION

19.  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.

20.  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].

21.  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)]).

22.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

23.  As the applicant’s delay of two days is not significant, for present purposes, we will focus on the merits of his application.

24.  In our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.

25.  Moreover, the applicant also did not request for any oral hearing in relation to his application for leave to apply for judicial review.  Accordingly, it is reasonable and proper for DHCJ To to consider his application on paper.  Although his application for extension of time to appeal was fixed to be heard on 13 July 2023, the applicant failed to attend the hearing.  Accordingly, it lies ill at his mouth to contend that the decisions made by the court were unfairly reached without allowing him an opportunity to clarify his case.  The applicant already had ample opportunities to make submissions in relation to his applications before the court below.  More importantly, he fails to point out any error in the Leave Decision that was dismissed due to his withdrawal of the application for leave to apply for judicial review.  His intended appeal is a nonstarter.

26.  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.

DISPOSITION

27.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 9 August 2023 is dismissed.