RE PHAM BA HUY

CAMP 94/2024, [2025] HKCA 181

On intended appeal from [2024] HKCFI 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 94 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 2084 OF 2023)

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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 Bruno Chan (“the Judge”)  dated 16 February 2024[1] refusing to extend the time for applying for judicial review and 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”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  which rejected his no-refoulement claim.

3.  The applicant has filed an affirmation in support of his application.  He has not lodged any written submission despite the directions given by the Court. 

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 34.  He entered Hong Kong illegally and was arrested by the police on 8 December 2020.  He raised a non-refoulement claim based on fear of being harmed or killed by his creditor due to his inability to repay his debt. The details of his claim were summarised by the Judge in [2] to [6] of the Form CALL-1. 

6.  By a decision dated 29 September 2021, the Director rejected the applicant’s claim under the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] ground.  

7.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing held on 4 May 2022.  By its decision dated 24 November 2022, the Board dismissed the appeal. 

8.  In gist, for the reasons given at [34] to [51] of the decision, the Board found there was no evidence to show that the applicant had borrowed the loan from the creditor, or that the creditor and his followers were state-actor. The Board considered that, even on the applicant’s evidence, the harm from the creditor was not imminent, any ill-treatment by the creditor had not attained a minimum level of severity, and the future risk alluded to by the applicant was speculative.  The Board further found that state protection and internal relocation options were reasonably available to the applicant, which would have reduced any risk of harm that he might face.  In conclusion, the Board held that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.   

9.  On 29 November 2023, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he set out the grounds for seeking relief, which were summarised in [11] of the Form CALL-1.  

10.  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.  The applicant’s application was therefore about nine months late.  He did not provide any explanation for the delay.  

11.  The Judge listed the application for an oral hearing on 23 January 2024, but the applicant did not attend the hearing.  By a Form CALL-1 dated 16 February 2024, the Judge refused to extend time and dismissed the application for the reasons he gave in [14] to [18] as follows:

“14. In the Applicant’s case, a delay of almost 9 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he subsequently attend the scheduled hearing of his application without explanation, and as the record shows that the Board’s decision was sent on the same day of 24 November 2022 to his then reported address without being returned through undelivered post, I am unable to see any good reason or justification for his such serious delay.

15. As for the merits, if any, of his intended application, those grounds put forward by the Applicant for his intended challenge as listed above are all just some bare and vague assertions of his without any relevant or necessary details or particulars or elaborations as to how they apply to his case, or how did the Adjudicator or the Board act in a procedurally unfair or improper manner or that the decision is unfair or unreasonable, or what relevancy were extra-judicial killings or State Acquiescence to the Applicant’s case, or what evidence is there that the Applicant had been tortured by the state law enforcement agencies or politicians when the factual basis of his claim even on his own case was a private monetary dispute between him and his creditor without any state or official involvement at all. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

12.  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 2 March 2024.

13.  By a summons filed on 22 March 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  The applicant was absent at the hearing of the summons on 29 April 2024.  By his decision handed down on 14 May 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 20 days.  He did not provide any explanation for the delay in his application made to the Judge.  In the affirmation in support of the present application, the applicant explained that he was unrepresented and did not have access to legal advice.  He also stated 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.  As the delay, though not insignificant, was not very serious, we propose to focus on the merits of the intended appeal.

16.  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.

17.  In his summons and supporting affirmation, the applicant has not put forward any ground to support the intended appeal.  Nor did he identify any error in the Judge’s decision.  The applicant has therefore failed to show that his intended appeal has any merit, let alone a reasonable prospect of success.   

18.  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 27 May 2024.