RE PHAM GIA KIEN

CAMP 201/2023, [2024] HKCA 112

On Appeal From [2022] HKCFI 2758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 201 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 584 OF 2019)

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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 1 March 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 584/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 13 February 2019 (wrongly stated in Form 86 as 13 January 2019)  which refused the applicant’s appeal against the Director’s Decision of 9 July 2018.  Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 8 September 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 22 September 2022).  Being out of time for around 3 months and 20 days, the applicant took out an application on 11 January 2023 before the Judge requesting an extension of time to appeal.  The Judge on 18 May 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 30 May 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 statement, 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 on 10 December 2015 via the Mainland.  He raised a non-refoulement claim on 14 December 2015 but the applicant did not respond to the Immigration Department’s letters and his claim was then stayed.  On 14 November 2017, the applicant again applied for non-refoulement and the Immigration Department decided to re-instate his claim. The applicant alleges that if he returned to Vietnam he would be harmed or killed by a creditor by the name of Hung.

3)  The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 9 July 2018.  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’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board dismissed the applicant’s appeal against the Director’s Decision on 13 February 2019 (‘the Board’s Decision’).  In the Board’s Decision, the Board held that no hearing was needed and a disposal of the claim on paper was appropriate.  It held that the applicant’s fear was limited to not being able to repay his creditor.  It held that the creditor asked for repayment from the applicant many times, but he did not seriously harm the applicant.  The applicant’s family was not attacked or threatened.  After the applicant left Vietnam, the creditor did not attack or threaten the applicant’s family.  The applicant did not know much about the background of the creditor, nor did the applicant know who the creditor had connections with.  There was insufficient evidence for the applicant to conclude that the creditor had any connection with the Vietnam state.  Internal relocation was available.

5)  Decisions of the Judge

8.  In his decision dated 8 September 2022, the Judge held that the applicant provided no ground for seeking relief.  There was no error of law or procedural unfairness in the Board’s decision.  

9.  In his decision dated 18 May 2023, the Judge stated that the court decision was sent to the applicant on the same day to the applicant’s last reported address without being returned.  Importantly, the applicant did not put forth any proper grounds of appeal.  The application for extension of time for appeal was dismissed. 

6)  Legal principles

10.  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

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

12.  The Form CALL-1 decision was handed down on 8 September 2022.  The deadline for the appeal was 22 September 2022.  The applicant was about 3 months and 20 days late when he filed his extension of time to appeal application on 11 January 2023.  The applicant barely stated that he did not receive any decision from the mail, and he only got to know through his immigration officer, without further explanation. 

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant did not provide grounds of appeal.  In the applicant’s statement, the applicant simply repeated the factual background and complained about the decisions below.

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

15.  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.

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

8)  Disposition

17.  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 30 May 2023.

18.  On 28 December 2023, the Court received a letter from the applicant dated 18 December 2023 forwarded by the Immigration Department by fax stating that he would like to cancel his appeal.

19.  We would also dismiss the applicant’s summons filed on 30 May 2023 in accordance with the applicant’s request for dismissal of appeal.