NGUYEN VAN VAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2078/2019

[2025] HKCFI 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2078 OF 2019

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“Director”).  The Director rejected his application (“Director’s Decision) and he appealed to the Torture Claims Appeal Board (“Board”).  Having considered his evidence, the Board, by its decision dated 20 June 2019 (“Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  The applicant had attended the hearing for his leave application scheduled for 30 October 2024 and made oral submissions to the Court.

3.  By an order dated 6 December 2024 (“Order”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended judicial review application.

4.  The applicant by a summons issued on 23 December 2024 (“Summons”) seeks extension of time to appeal against the Order, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the RHC ended on 20 December 2024, and hence he was 3 days late with his intended appeal.   

5.  In his supporting affirmation filed on 23 December 2024 (“Affirmation”), the applicant stated that: “I did not receive the Decision of the Court.  A few friends saw the court update the list of people whose newly judgment on 13 December 2024 included my name.  Those friends informed me.  Then because I do not speak English and Cantonese, so I do not know how to file an appeal to Court of Appeal.  I had to ask some friends to help me when they had free time.  The friend helped search my file in the Court and make a copy of the Decision.  But at that time I passed the deadline to file the Notice of Appeal.”

6.  As the applicant issued the Summons in English and filed the Affirmation also in English.  I issue this decision in English.

Discussion

7.  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 the intended appeal; and (iv) the prejudice to the respondent if 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

8.  The applicant failed to attend the hearing of the Summons scheduled for 21 January 2025 despite a notice of hearing dated 31 December 2024 having been sent to his address stated on the Affirmation and not being returned.  I proceeded with his application according to the papers already placed before the Court.

9.  The applicant did not provide any explanation in the Summons or the Affirmation for not receiving the judgment for his case (“Judgment”) and the Order within 14 days of its issuance nor when and how did he actually receive the Judgment and the Order. 

10.  When the applicant attended the hearing of 30 October 2024, he was in custody of the Correctional Services Department (“CSD”).  According to records in the court file, the Judgment and the Order had been sent to the applicant on 6 December 2024 through the CSD.  The documents were not returned to the Court.  As such, the applicant should have received the Judgment and the Order but it was unclear when did he receive the documents.  In any event, according to the Affirmation, the applicant was aware of the Judgment latest on 13 December 2024 prior to expiration of the 14-day period stipulated under Order 53 rule 3(4) of the RHC.  For reasons stated in the Affirmation, the applicant did not take immediate action to obtain a copy of the Judgment from the Court.  

11.  In the applicant’s case, I accept that a delay of 3 days may not be substantial.  More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it might reasonably be argued that the Board’s Decision was unfair or unreasonable, either in the Summons or in the Affirmation.

12.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal in saying that this court was wrong in refusing his application for leave for judicial review of the Board’s Decision.  

13.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

14.  The applicant’s claim was based upon his allegation that if refouled, he would be harmed or killed by his creditor because he was unable to repay his debt.

15.  Having considered the evidence, the Board found that the alleged ill-treatment, whether physically or mentally, inflicted by the creditor upon the applicant did not attain a minimum level of severity justifying the granting of non-refoulement protection and there was insufficient evidence to show that he faced a real or foreseeable risk of being subjected to the proscribed harms if he were returned to Vietnam.  Reasonable sufficient state protection would be available to the applicant upon his return and internal relocation would also be viable to him.  The Board dismissed his appeal on such basis.

16.  The applicant is not able to raise any valid reason to challenge the Board’s Decision.  Thus, there is not any realistic prospect of success in his intended appeal against the Order.

17.  In the circumstances, I refuse to extend time for his appeal.  Accordingly, I dismiss his application.