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CAMP 137/2021
[2021] HKCA 1395
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 137 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 2432 of 2018)
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| RE |
DOAN HUU DONG |
Applicant |
____________________
Before: Hon Cheung and Chu JJA in Court
Date of Judgment: 24 September 2021
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JUDGMENT
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Hon Chu JA (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 28 July 2020 refusing his application for leave to apply for judicial review.
2. The applicant has filed an affirmation in support of his application. Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.
3. 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 applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.
4. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 October 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 25 May 2017 rejecting his non-refoulement claim.
5. The applicant is a national of Vietnam aged 34. He entered Hong Kong illegally and was arrested by the police on 6 November 2014 and raised a non-refoulement claim.
6. The applicant’s claim was based on fear of being harmed or killed by his creditor, Ah Nam, because of he has not been able to repay his loan. The details of the applicant’s claim were set out in the Director’s decision at [5] and [6] and the Board’s decision at [8] to [20]. We will not repeat them.
7. By his decision dated 25 May 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.
8. The applicant’s appeal to the Board was heard on 20 July 2018. By its decision dated 26 October 2018, the Board dismissed the appeal. The Board found the core of his account, in particular the alleged assault and threat by his creditor, lacked credibility, and rejected his evidence. The Board did not accept that the applicant had incurred debt in Vietnam and that he was harmed by creditors or debt collectors. The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Vietnam, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.
9. On 1 November 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. The Judge heard the application at an oral hearing. The applicant did not set out any ground for seeking relief. He only stated in the affirmation that if he returned to Vietnam, his creditor would harm him.
10. By a Form CALL-1 dated 28 July 2020[5], the Judge refuse to give leave to apply for judicial review. The Judge noted that the Director’s decision and the Board’s decision had been explained to him by the duty lawyer and his friend respectively, and the applicant did not have any comment on the Board’s findings. The Judge considered the Board was entitled to form its views on the applicant’s credibility after assessing the evidence before it. The Judge held that the applicant failed to show his intended judicial review has reasonable prospect of success.
11. 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 order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 11 September 2020[6].
12. By a summons filed on 5 March 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on the papers. By his decision handed down on 22 April 2021[7] refused the application.
13. On 30 April 2021, the applicant filed the present summons to appeal the Judge’s 22 April 2021 decision. This is not a proper procedure. The proper course is to make a further application to this Court for extension of time to appeal under Order 59 rule 2B(3) of the Rules of the High Court. We will treat this application as a renewed application for extension of time to appeal.
14. In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 over 5 months, which is substantial. Both before the Judge and in the present application, the applicant explained that he did not have money to seek legal advice on procedure, but he understands there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review. The applicant, however, has not explained what steps he had taken to find out the appeal procedures. We are not satisfied that he has provided good explanation for the long delay.
16. As to 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].
17. 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 Board afresh as if it is a fresh application for judicial review.
18. In the present application, the applicant has not provided any ground of appeal. He merely asserted in the affirmation that there is a good ground of appeal but has given no elaboration or details of it.
19. In the application below, the applicant has not shown any legal errors, irrationality or procedural irregularities in the Board’s findings and decision. As the Board had rejected the factual basis of his claim, the applicant’s intended judicial review has no prospect of success. The Judge is correct in refusing leave to apply for judicial review.
20. Given that the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 30 April 2021.
(Peter Cheung)
Justice of Appeal |
(Carlye Chu)
Justice of Appeal |
The applicant, unrepresented, acted in person.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.
[5] [2020] HKCFI 1730.
[6] By reason of section 31(1) High Court Ordinance, Cap. 4, the month of August which is the summer vacation (see section 29(2) of High Court Ordinance and Order 64 rule 1(1) of the Rules of the High Court) is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal.
[7] [2021] HKCFI 975.
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