RE DAO TRONG TRUONG

CAMP 362/2023, [2025] HKCA 180

On intended appeal from [2022] HKCFI 2239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 362 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2064 OF 2018)

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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 the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”)  dated 26 July 2022[1] refusing to extend the time for him to apply for judicial review and 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 decisions of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

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

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 45.  He is married to Nguyen Thi Luyan and have a daughter named Dao Thu Trang who was born in 2000.  On 24 November 2013, the applicant and his wife surrendered to the police after entering Hong Kong illegally.  The applicant lodged a non-refoulement claim on 11 December 2013.  On 13 December 2013, his wife was voluntarily repatriated back to Vietnam.  She later re-entered Hong Kong illegally.  On 6 October 2014, she surrendered to the Immigration Department and raised a non-refoulement claim.  On 16 April 2015, their daughter surrendered to the Immigration Department, after entering Hong Kong illegally. She raised a non-refoulement claim on 29 June 2015.

5.  In essence, the applicant and his wife and daughter (collectively “the applicant’s family”)  claimed that they feared they would be harmed or killed by some public officers in Vietnam arising from a dispute; and by a money lender due to their inability to repay their debt. In particular, they feared that the daughter would be sold to China.  The details of their claims were set out in [3] to [36] of the Board’s decision and summarised in the Form CALL-1 at [9] to [21].

6.  By two decisions dated 30 September 2015 and 5 December 2016, the Director rejected the claims of the applicant’s family.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The further decision relates to the BOR 2 risk[5] ground.  

7.  The Board heard the appeal of the applicant’s family against the Director’s decision on 4 May 2017, during which the applicant and his wife gave evidence and answered questions from the Board.  By its decision given on 1 March 2018, the Board dismissed the appeal of the applicant’s family. 

8.  In gist, for the analysis and reasons given in [38] to [58], the Board found the evidence of the applicant and his wife unbelievable and unreliable.  The Board also found, as an alternative, that even if their evidence were to be accepted, they would still have failed to substantiate the claim of the applicant’s family under the applicable grounds in light of the relevant Country of Origin information (“COI”).  The Board further considered that state protection and internal relocation were reasonably viable, which would reduce any risk that they might face.  The Board concluded that the applicant’s family failed to establish any entitlement to non-refoulement protection and dismissed their appeal.   

9.  Order 53 rule 4(1)  of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  On 27 September 2018, the applicant’s family[6] filed a Form 86 together with an affirmation made by the applicant to apply for leave to judicially review the Board’s decision.  Their application is more than three months late.  

10.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 26 July 2022, the Judge refused to extend the time for applying for judicial review and dismissed their application for leave to apply for judicial review.  The Judge considered that the Board’s finding on the credibility of the applicant and his wife, and the dismissal of their claims based on their credibility were plainly wrong: see [21] to [37] of Form CALL-1.  Specifically, the Judge found the standard of proof adopted by the Board was unduly harsh, following the approach in Karanakaran [2000] Imm AR 27, and that the Board failed to consider that the inconsistencies in the evidence of the applicant and his wife might be due to differences in recollection, and had therefore attached too much importance on the discrepancies in their evidence. 

11.  As to the Board’s assessment and findings on the alternative basis (namely, on the basis of the evidence given by the applicant and his wife were accepted), the Judge considered that the applicants’ intended grounds of judicial review were unarguable (see [38] to [44] of Form CALL-1)  in that (a)  there was no error of law or fact or procedural unfairness in the Board’s assessment of the evidence and findings as to the risks of harm faced by the applicant’s family; (b)  the Board had taken into account all the relevant evidence and the COI in arriving at its findings; and (c)  there was no procedural unfairness or Wednesbury unreasonableness in the Board’s assessment. 

12.  The Judge concluded that there was no basis to interfere with the Board’s decision on the alternative basis and the intended judicial review had no reasonable prospect of success.  He therefore refused to grant an extension of time and dismissed the application for leave to apply for judicial review. 

13.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant’s family may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  On 15 August 2022, the applicant’s wife and daughter filed a Notice of Appeal in CACV 321/2022 to appeal the Judge’s decision to the Court of Appeal.  The applicant did not join in the appeal.  On 8 December 2022, the Court of Appeal (Au JA and Ng J)  dismissed the appeal after a hearing ([2022] HKCA 1838).  The application by the applicant’s wife and daughter for leave to appeal to the Court of Final Appeal was dismissed on 26 April 2023 ([2023] HKCA 580).  

14.  By a summons filed on 16 May 2023 together with an affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Lung dealt with the application on paper, and by his decision handed down on 20 June 2023[7] refused the application.

15.  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. 

16.  The applicant was late by about eight months, which is a serious delay.  In the Court below, the applicant stated that he was late because he was sick, but did not provide any details.  In the present application, the applicant stated in the supporting affirmation that he failed to appeal because he did not get the judgment. Again, there was no elaboration.  Having regard to the inconsistent reasons stated in the two affirmations, the lack of supporting particulars and the fact that his wife and daughter had lodged an appeal within the time limit, we are not satisfied that the applicant has satisfactorily explain the long delay. The applicant therefore has to show that his intended appeal enjoys 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.  Other than stating in the summons that he did not have a chance to appeal as he did not get the Judge’s judgment, the applicant has not put forward any ground to support the intended appeal.  Nor has he identified any error in the Judge’s decision and reasoning.  The applicant simply fails to show that his intended appeal has any merit, let alone a real prospect of success.   

19.  We have separately considered the Judge’s decision and are in agreement with the analysis and conclusion. 

20.  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 4 December 2023.