VU TRONG DAI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2834/2019

[2023] HKCFI 1487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2834 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 11 June 2020 I dismissed the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon his subsequent request to withdraw his application as he wanted to go back to his home country in Vietnam.

2.  In my decision I noted that that Applicant had failed to put forward any proper ground for seeking relief in his leave application (Form 86) or in his supporting affirmation in which he just repeated his claim of fear of harm from his creditors over his outstanding debts, and given the findings by both the Director and the Board in their decisions that state protection and reasonable internal relocation would be available to him upon returning to his home country to negate any such risk, and upon the Applicant’s request to withdraw his application because he wanted to return to his home country, I found that there was no longer any basis for him to have any fear of his claimed risk, and therefore concluded that it would be appropriate to direct that his leave application be dismissed rather than just withdrawn upon his request, and so I did in my decision.

3.  The Applicant now more than 2 ½ years later on 30 January 2023 issued a summons to seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap. 4A expired on 25 June 2020, and hence he was some 2 years 7 months late with his intended appeal.

4.  In his supporting affirmation, the Applicant stated as follows:

“1. I would like to re-open my case and apply for extension of time to appeal for my case number HCAL 2834/2019.

2. My family called me and said that my debt has been settled by my family, the creditor would not pursue me anymore and I could return to Vietnam safely. I believed that and I withdrew my application for Judicial Review, and I requested to be repatriated as soon as possible.

But recently, a relative of mine told me that my family has been being threatened and forced to cheat and convince me to return to Vietnam. My family are people who have nothing to do with the money I borrowed from the gangsters, but they threaten my family to cheat me like that can see they are disrespectful to the law and barbaric. The creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people to satisfy their anger and ferocity. I definitely will be killed if I return to Vietnam. Now I know the truth that I have been cheated and the gangsters are still actively pursuing me to threaten my life, so I cannot return to Vietnam, anymore.

3. For all the above reasons, I sincerely hope the Court to allow me to extend the time to appeal.”

5.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

6.  In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely substantial and inordinate, and for which he failed to attend the scheduled hearing of his summons without any explanation, but it appears from his affirmation that the reason for his such serious delay with his intended appeal is that he had only recently been informed that he had been tricked by his creditors to lure him back to Vietnam.

7.  However, there are no other details or explanation provided in his affirmation as to why having expressed his intention to return to his home country back in May 2020 when he made his request to withdraw his application that for the next 2 ½ years he had remained in Hong Kong instead until he was so informed by his relative and issued his summons now before me, nor as noted above did he attend the scheduled hearing in order to provide such relevant details and necessary explanations to the Court.

8.  The record shows that the Court’s decision was sent on the same day of 11 June 2020 to the Applicant at his then reported address without being returned through undelivered post, and in the absence of any evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

9.  More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and that he also failed to attend the hearing of his summons so as to identify any error in the decision. As such I am unable to find any basis for his intended appeal or any prospect of success therein.

10.  If indeed it is a case of the Applicant seeking to re-open his leave application, as he so claimed in his affirmation, after it had been dismissed by the Court upon what was then a valid withdrawal or abandonment of the application by the Applicant in the sense of being the result of a deliberate and informed decision on his part, clearly the application is no longer extant and that this Court has thus become functus officio with no further jurisdiction to take any further step regarding the leave application notwithstanding the lack of determination on its merits, as in the same principles that apply to the dismissal of an appeal by the Board against the Director’s refusal of a non-refoulement claim upon a valid withdrawal of the appeal by a claimant: see Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669.

11.  Furthermore, it has also been established by the Court of Appeal where an applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review, and the Court acceded to his application whereupon there was nothing outstanding in the action, that the Court was entitled to conclude the action by ordering a dismissal of the application instead of leaving the action at large, and that it was not necessary for the Court to adjudicate on the merits of the application: Re Manik Md Mahamudun Nabi, CAMP 361/2021 [2022] HKCA 471.

12.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse the Applicant’s application for extension of time to appeal, and dismiss his summons.