RE NGUYEN THANH DAI

CAMP 107/2025, [2025] HKCA 679

On intended appeal from [2024] HKCFI 2404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 107 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1817 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 23 September 2024 ([2024] HKCFI 2404) dismissing his application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) refusing to allow the late filing of his notice of appeal to appeal the decision of the Director of Immigration (“the Director”).

3.  The applicant has filed an affirmation and provided a statement to support his application.

4.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Vietnam aged 37. He entered Hong Kong illegally and surrendered to the Immigration Department on 24 November 2016. On the same day, he raised a non-refoulement claim based on fear of being harmed or killed by his two creditors due to his inability to repay the debt. The details of his claim were set out in [7] of the Director’s decision.

6.  In gist, the applicant asserted that he borrowed from the creditors in 2012 to finance the purchase of a goods vehicle. As a result of a traffic accident involving his vehicle, he was imprisoned and could not repay the loan. After his discharge from prison in 2014, the creditors pressed him for repayment and had on several occasions, threatened and assaulted him. Fearing for his personal safety, he left Vietnam and sneaked into Mainland China and eventually came to Hong Kong.

7.  By a decision dated 31 October 2017, the Director rejected the applicant’s claim under the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] ground.

8.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing held on 27 March 2019. By its decision dated 21 June 2019, the Board dismissed the appeal.

9.  In gist, for the reasons given at [94] to [145] of the decision, the Board rejected the applicant’s evidence as “complete invention”, as it is “full of exaggeration, fabrication, discrepancies, inconsistencies” and “bare assertions that fly in the face of common sense and logic.” The Board also considered that, even on the applicant’s evidence, the harm from the creditors had not attained a minimum level of severity, and there was no genuine and substantial risk pf being subjected to torture, ill treatment, persecution or violation of his right to life. The Board further found that state protection and internal relocation options were reasonably available to the applicant, which would have reduced any risk of harm that he might face. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

10.  On 2 July 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not provide any grounds for seeking relief.

11.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper. By his judgment dated 23 September 2024, the Judge refused to give leave for applying for judicial review, finding that the applicant failed to raise any valid reason to challenge the Board’s decision and that his intended judicial review therefore did not have any realistic prospect of success.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The 14-day period for the applicant to appeal ended on 7 October 2024.

13.  By a summons filed on 6 January 2025, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 27 February 2025 ([2025] HKCFI 345) refused the application.

14.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant was late by three months, which is a serious delay. In the Court below, the applicant explained that he did not receive the judgment. We, however, note from the court record that the judgment and the Form CALL-1 were sent to the address provided by the applicant on 16 August 2024, which is also the address stated in the present summons and affirmation. The judgment and the Form CALL-1 had not been returned by the Post Office.

16.  In the present application, the applicant stated in his affirmation that he believed that the merit of his appeal constituted sufficient reason for the Court to allow him to appeal out of time. We are of the view that the applicant has failed to satisfactorily explain the serious delay. He therefore has to show that his intended appeal enjoys a real prospect of success.

17.  When considering the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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. It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

18.  In his supporting affirmation, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

19.  In the statement that was lodged together with the present summons, the applicant stated that: (a) the Judge’s decision was unsatisfactory; (b) the creditors and gangsters in Vietnam are cruel and violent and his life would be seriously threatened or he might even die; (c) internal relocation was not feasible as there was no guarantee that he could find a living and also because the creditors had nationwide social network and clandestine connections with the police and government officials; and (d) the Director had not considered his human right.

20.  In our view, the matters stated in the supporting affirmation and the Statement do not constitute viable arguments in support of the intended appeal:

(1)  The applicant has not requested an oral hearing. It was thus within the Judge’s power to determine his application for leave to apply for judicial review without holding an oral hearing: see Order 53 rule 3(3) of the Rules of the High Court.

(2)  It is the duty of the applicant to show that he has reasonably arguable grounds to apply for judicial review; yet he did not provide any ground in his Form 86 or the accompanying affirmation. The Judge could not be faulted for refusing his leave application.

(3)  The matters raised in the Statement do not engage the Board’s reasons for rejecting the applicant’s evidence and the factual basis of his claim. Nor have they identified any error in the Board’s decision and the Judge’s decision. The applicant has therefore failed to show that his intended appeal has any merit, let alone a real prospect of success.

21.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 29 May 2025.