RE VUONG HONG HA

CAMP 51/2023, [2024] HKCA 93

On Appeal From [2022] HKCFI 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 51 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1934 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 14 September 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1934/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 6 August 2018 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 2 September 2016 and 8 March 2017 rejecting his non-refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave on 31 March 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 14 April 2022). Being out of time for around 3.5 months, the applicant took out an application on 28 July 2022 before the Judge requesting an extension of time to appeal. The Judge on 12 January 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 7 February 2023, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and a statement of the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.  Briefly stated, the applicant is a Vietnam national. He entered Hong Kong illegally via the Mainland on 28 March 2016. He raised his non-refoulement claim on 29 March 2016 alleging that he would be harmed or killed by his creditor called Dai due to two loans he had taken out.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 2 September 2016. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the applicant’s right to life claim on 8 March 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4) The Board’s Decision

8.  An oral hearing was conducted by the Board on 17 July 2018. The Board dismissed the applicant’s appeal and the Director’s Decisions were affirmed. The Board held that the applicant’s claim based on his inability to repay the loan and the threat from his creditor was questionable, unreliable and inconsistent. It held that the applicant’s evidence before it was inconsistent with his evidence in his non-refoulement claim form. There was nothing in the evidence that showed his creditor Dai was a triad member. The Board found that the applicant and his family were not harmed in Vietnam. The dispute was private in nature. There was no state involvement and internal relocation was available.

5) Decisions of the Judge

9.  In his decision dated 31 March 2022, the Judge held that no ground for seeking relief was stated in the applicant’s Form 86 or affirmation, nor did he seek for an oral hearing. There was no error of law or procedural unfairness.

10.  In his decision dated 12 January 2023, the Judge held that the applicant’s explanation for his delay was not acceptable. The Form CALL-1 was sent on the same day to the applicant’s last known address without being returned. The Judge held that importantly, the applicant did not put forth any valid grounds of appeal. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 31 March 2022. The deadline for the appeal was 14 April 2022. The applicant was about 3.5 months late when he filed his extension of time to appeal application on 28 July 2022. The applicant made a bare assertion during the hearing before the Judge that he was unrepresented and cannot read English, but the Court record showed that the decision was mailed to him on the same day as Form CALL-1 without being returned.

(2) Prospect of the intended appeal

14.  In the applicant’s summons, the applicant asked for leave to advance a new ground of appeal. The applicant’s affirmation stated that the decision below was reached unfairly without giving him any chance to clarify his case and the situation in his country. He stated this ground justified his application for extension of time to appeal. In the applicant’s statement, he repeated factual matters such as his life is in danger or that changing another location to live is not feasible for him but these are matters within the province of the Board.

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

17.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 7 February 2023.