RE DONG HOANG ANH

CAMP 118/2024, [2025] HKCA 260

On intended appeal from [2023] HKCFI 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 118 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 848 OF 2022)

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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 Bruno Chan (“the Judge”) dated 20 April 2023[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

2.  The applicant has filed a supporting affirmation to support his application. Despite directions given by the Court, he has not filed any written submission.

3.  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.

4.  The applicant is a national of Vietnam aged 35. In 2014, he entered Hong Kong illegally and surrendered to the Immigration Department on 6 January 2015. On 10 November 2017, he was voluntarily repatriated to Vietnam. He subsequently re-entered Hong Kong illegally and was arrested by the police on 24 November 2020. After being referred to the Immigration Department, he lodged a non-refoulement claim.

5.  The applicant’s claim is based on fear of being harmed or killed by a moneylender due to his inability to repay his debt. He claimed that he borrowed money from the moneylender for the operation of his business. In July 2020, after he could not keep up with the interest payments, the moneylender and his people came to his home to demand payment, during which they made death threat and punched and kicked him. The details of his claim were set out in [6] of the Director’s decision.

6.  By a notice of decision dated 31 August 2021, the Director rejected the applicant’s claim, having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

7.  The Board heard the appeal at an oral hearing held on 11 May 2022. The applicant was absent at the hearing. He was served with a notice of the Board’s intention to determine the appeal in his absence and directed to provide an explanation of his absence. The applicant did not submit any written explanation. The Board therefore proceeded to determine the appeal, and by its decision given on 23 June 2022 dismissed the appeal.

8.  In gist, the Board found the applicant’s factual assertions lacking in details and were inherently unreliable and unconvincing. The Board did not find the applicant’s claim credible and did not accept he had borrowed money and had been threatened and assaulted by a moneylender. The Board found he was not subjected to ill-treatment in the past that attained a minimum level of severity or he would face any risk of harm in Vietnam. The Board also found that, even on the applicant’s case, it was a private dispute, and internal relocation was viable, which would reduce any risk that the applicant might face. The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection and dismissed their appeal.

9.  On 30 August 2022, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.

10.  His grounds for seeking relief were: (1) if he returns to Vietnam, his life will be seriously threatened and he may die because the gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people; (2) internal relocation is not feasible because he will face difficulties in that he does not have good health, will be disadvantaged in the labour market and may not be able to make a living; (3) the gangsters can easily track him as they have a nationwide social network and can bribe the police; and (4) the Board erred in finding his claim not credible.

11.  The Judge heard the application at a hearing held on 21 March 2023. By a Form CALL-1 dated 20 April 2023, the Judge refused to give leave to the applicant to apply for judicial review.

12.  For the reasons set out in [11] to [15], the Judge found the intended judicial review had no prospect of success. First, the Judge found the grounds put forward by the applicant were just broad and vague assertions with no indication as to how they could be applied to his case. Second, the Director and the Board are the primary decision makers. The Board found against the applicant on the credibility of his evidence. There was no valid basis to challenge the findings. Third, both the Director and the Board found the risk of harm, if true, was a localised one and internal relocation was viable. Fourth, there was no error of law, procedural unfairness or failure to apply high standards of fairness in the consideration and assessment of the Director and the Board.

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 5 December 2023, seven months after the expiry of the 14-day 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 heard the application at a hearing held on 4 January 2024. By his decision handed down on 18 January 2024[6], the Judge 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 seven months, which is a serious delay. Both in the Court below and in the present application, the applicant explained that he did not receive the Judge’s decision and it was through another court proceeding that he was involved in that he came to learn of the decision.

16.  The court record shows that when the applicant issued the Form 86, he was detained in Tong Fuk Prison. When he was later discharged from prison, he did not provide the court with an updated address. The Form CALL-1 was sent to an address in Shantung Street, Mongkok, which was the address the applicant provided to the Immigration Department. It was however not returned by the Post Office. It was due to the applicant’s failure to provide the Court with an updated address that he did not receive the Judge’s decision in good time. We agree with the Judge that the delay has not been satisfactorily explained. The applicant will have to show that his intended appeal has a real prospect of success.

17.  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.

18.  In his affirmation in support of the present application, the applicant stated that his life would be in danger if he were to return to Vietnam. Other than this, the applicant has not put forward any ground of appeal.

19.  We are of the view that the intended appeal has no merits. The Board had rejected the applicant’s case in its entirety. The Judge held that there is no basis to judicially review the Board’s findings and assessment of risk. The applicant has not pointed to any error in the Judge’s decision. This being the case, there is no factual foundation for his assertion that he would face danger in Vietnam.

20.  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 4 July 2024.