RE PHAM VAN CUONG

CAMP 181/2022, [2023] HKCA 530

On Appeal From [2022] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 181 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2650 OF 2018)

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D E C I S I O N

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

I. Renewed application for extension of time to appeal

1.  On 23 November 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board/Non -  refoulement Claims Petition Office (the ‘Board’)  dated 15 November 2018 which dismissed his appeal against the decisions of the Director of Immigration (the ‘Director’)  dated 6 July 2016 and 21 December 2016 respectively, rejecting his claim for non -  refoulement protection.

2.  In his decision of 15 March 2022 (the ‘Decision’), Deputy High Court Judge K.W. Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision. Being out of time, the applicant filed a summons on 13 April 2022 for appeal out of time.  The Judge on 23 May 2022 rejected the applicant’s application.

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 1 June 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals on 1 June 2022, the applicant was required to provide written submissions to the Court by 15 June 2022.  The applicant has failed to do so, and pursuant to [7] of the said directions, the applicant is now deemed to have abandoned the right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Background

6.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 15 July 2014 and surrendered to the Immigration Department on 22 July 2014.  He then lodged a non -  refoulement claim on the basis that, if refouled, he would be harmed or killed by a moneylender because of his failure to repay loans owed to the moneylender.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III.  The Director’s Decision

8.  By a notice of decision dated 6 July 2016 (the ‘Director’s First Decision’), the Director refused the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.

9.  The Director invited the applicant to submit additional evidence in respect of BOR 2 risk.  The applicant did not respond.

10.  By a notice of further decision dated 21 December 2016 (the ‘Director’s Second Decision’), the Director rejected the applicant’s claim on the ground of BOR 2 risk.

IV.  The Board’s Decision

11.  The applicant sought to appeal the Director’s First and Second Decisions to the Board by a notice of appeal/petition dated 29 December 2016.  His notice of appeal/petition was filed more than five months out of time for the appeal against the Director’s First Decision.  The Board refused to exercise its discretion to allow the late filing of appeal against the Director’s First Decision because the applicant had failed to provide any satisfactory explanation for the lengthy delay.

12.  The Board proceeded to consider the appeal against the Director’s Second Decision.  After a hearing held on 21 August 2018, the Board dismissed the applicant’s appeal on 15 November 2018 (the ‘Board’s Decision’).

13.  In considering the appeal against the Director’s Second Decision, the Board took into account the facts in the Director’s First Decision.  The Board noticed inconsistencies and contradictions in the applicant’s account of events and rejected the applicant’s claim that the moneylender would harm or kill him upon refoulement.  In any event, the Board concluded that state protection and internal relocation were both available to the applicant.  For these reasons, the Board dismissed the applicant’s appeal.

V.  Decision of the Judge

14.  The applicant filed a Form 86 and a supporting affirmation on 23 November 2018.  He did not put forward any ground for seeking relief in the Form 86.  In his affirmation, he reiterated that he would be killed by the moneylender if refouled.

15.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

16.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

17.  In his decision of 23 May 2022, the Judge noticed that the applicant’s application was late for two days, even after taking into account the temporary closure of the Registry due to the COVID - 19 pandemic between 7 March 2022 and 11 April 2022.  Given the delay was insignificant, the Judge focused on the merits of the intended appeal.  The Judge found that there was no realistic prospect of success for the intended appeal, since the applicant had failed to identify any valid ground to challenge the Board’s Decision or any error on the part of the Judge in assessing his application.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

18.  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.

VII.  Analysis

1)  Length of delay and reasons for the delay

19.  We agree with the Judge that the delay of two days is insignificant.  We shall instead focus on the merits of the intended appeal.

2)  Prospect of the intended appeal

20.  The applicant did not provide any proposed grounds of appeal in the summons and affirmation lodged with this Court.

21.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

22.  Furthermore, 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.

23.  There is one issue we need to discuss.  In the Board’s first decision, the Board has held that since strictly speaking there was no application by the applicant for leave to file his notice of appeal out of time, and there was no explanation as to the late filing, under section 37ZT of the Immigration Ordinance, there was no basis at all under statute for the Board to even consider granting an extension for the applicant.  However, under section 37ZT(2), in considering whether to allow the late filing of notice of appeal, the Board is required to also consider the merits of an applicant’s intended appeal against the Director’s decision: Re Qasim Ali [2019] HKCA 430.  The Board did not consider the merits of the application. 

24.  However, both the Director’s First and Second Decisions were based on the same facts which he had considered and rejected.  The Board reviewed the same facts and came to the view that the applicant’s claim on the loan was unbelievable.  It further held that the applicant’s claim that his life is being threatened by the creditor to be unbelievable.  It went on to consider protection by the applicant’s local government and internal relocation matters.  In other words, the Board had actually considered the merits of the Director’s First and Second Decisions.

25.  The Judge in [18] of Form CALL -1 stated :

‘ 18. It will be advisable and reasonable to allow the applicant to appeal against the Director’s First Decision as the facts for the Director’s Second Decision on BOR2 risk, which the Board found within time, have to base upon the facts of the Director’s First Decision. In any event, the Board had considered the facts in the Director’s First Decision and made its findings too. From its findings, it is clear that the applicant had no valid ground to challenge the Director’s First Decision. I find that this arguable point will not affect the Board’s BOR2 Decision.’

26.  The Judge’s approach cannot be faulted.  The Judge concluded that there are no merits in the applicant’s intended application.  We agree. 

VIII.    Disposition

27.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for extension of time to appeal has no prospect of success. As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 1 June 2022.