RE BUI DINH LAP

CAMP 43/2025, [2025] HKCA 704

On Appeal From [2024] HKCFI 1911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 43 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1707 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 3 March 2025, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 6 August 2024 ([2024] HKCFI 1911)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.  On 5 December 2024, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2024] HKCFI 3103)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 3 June 2019 (“the Board’s Decision”)  confirming the decision of the Director of Immigration (“the Director”)  dated 22 January 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnamese.  He entered Hong Kong illegally on 1 July 2015 and surrendered to the Immigration Department on 6 July 2015.  He lodged a non-refoulement claim on 24 March 2017, on the basis that, if refouled, he would be harmed or even killed by his daughter’s boyfriend (“Mr Nguyen”)  because he was unable to repay the debts owed to him by his wife and he also rejected Mr Nguyen’s proposal to marry his daughter to set-off the debt.  Details of the applicant’s claim were summarised by the Judge at [4] - [8] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  On 2 February 2018, the applicant subsequently appealed against the Director’s Decision to the Board.  The applicant appeared before the Board on 20 March 2019 and a Vietnamese interpreter was also present to provide language assistance during the oral hearing.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [11] - [14] of the Leave Decision:

“11. The applicant appealed the Director’s Decision to the Board. On 20 March 2019, the Board conducted an oral hearing.

12. The Board were of the view that the applicant’s claims were credible and consistent [68]. It accepted that the applicant’s wife had taken out a loan from Mr Nguyen in 2012 as investment into their business and that when the business failed, Mr Nguyen asked to marry the applicant’s daughter in return to set-off the loan. The Board also accepted that upon the applicant’s daughter refusal to the marriage proposal, Mr Nguyen started harassing the applicant and his family. Furthermore, it also accepted that the matter was reported to the police, but they took no action as they considered it a personal dispute [69]-[70].

13. Yet, the Board considered that internal relocation would be a viable option for the applicant [73]-[74], so that he would not face a real risk of harm upon return to Vietnam [75]. The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [12]-[16], [77]-[81], BOR 2 and BOR 3 risk [17]-[22], [82]-[90] or Persecution risk [23]^-[31], [91]-[94].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

7.  On 20 June 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in his Form 86.  In his supporting affirmation, he merely stated that his life would be in danger upon refoulement.  The applicant was absent on 22 May 2024 for the oral hearing before the Judge.  The Judge thus considered and determined his application on paper.

8.  On 6 August 2024, after considering the applicant’s application, the Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [17] - [23] of the Leave Decision:

“17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

20.  The Board did not challenge the applicant’s evidence. However, having considered the evidence and for the reasons given above, the Board concluded that there will be no real risk of him being harmed or killed by Mr. Nguyen if he returns to Vietnam and internal relocation will be a viable option open to him.

21.  There is no valid reason from the applicant to challenge the Board’s finding of the facts.

22.  The applicant therefore fails to show that he as any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

10.  On 29 October 2024, the applicant applied by summons together with an affirmation for an extension of time to appeal against the Leave Decision.  By that time, he was over one month late with his intended appeal.[5] No proposed ground of appeal was advanced in his summons.  In his supporting affirmation, he only alleged that he did not receive any letter from the court and was not aware of the deadline of the appeal.

11.  By the EOT Decision, the Judge held that there was no valid reason from the applicant to challenge the Board’s Decision and the Leave Decision.  Accordingly, the Judge dismissed his application for extension of time to appeal against the Leave Decision.

THIS APPLICATION

12.  By a summons and a supporting affirmation together with a written statement filed on 3 March 2025 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant did not raise any intended of appeal.  In his supporting affirmation, the applicant claimed that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and that the merits of this ground of appeal constituted sufficient reason for the court to allow his appeal out of time.

13.  In his written statement, the applicant claimed that his life would be seriously threatened and he would be killed upon refoulement as the creditors and gangsters in Vietnam are cruel and violent.  He also claimed that internal relocation would be unfeasible as his health was not good and he was not an active person.  He also claimed that the social network of gangsters and clandestine had connections with corrupted people in the government and the police, and the creditor and gangsters would be able to locate his new residence.  He also asserted that the Immigration Department failed to consider his human rights under various legislations, but failed to provide any specific particulars relevant to his own case.

14.  Contrary to the directions of the Registrar of Civil Appeals dated 3 March 2025, the applicant failed to lodge any written submissions.

DISCUSSION

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

18.  Further, the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  The applicant’s delay of over one month was significant.  He failed to give any reason, let alone good reason, for his serious delay.  He also provided no evidence to support his assertion that he failed to receive the court’s letters and decisions.  According to the court record, the Leave Decision and the sealed court’s order was sent on 6 August 2024 to the applicant’s last known address at the material time and was not returned undelivered.  Plainly there is no substance in his assertions.  Ignorance of the deadline for lodging his Notice of Appeal is also not an excuse, let alone good reason, for his substantial delay.

20.  In any event, in our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.  He already had ample opportunities to present his case and home country situation to the Judge through written submissions.  It is his own choice that he failed to turn up at the hearing before the Judge on 22 May 2024.  The applicant also fails to point out any error the Leave Decision.  His intended appeal is a nonstarter.

21.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the Leave Decision.  The Judge had considered the facts of his case in detail and we agree with the Judge’s observations.  There is plainly no basis to disturb the Leave Decision.

22.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 3 March 2025 is dismissed.