RE NGUYEN THE TOAN

CAMP 456/2022, [2023] HKCA 976

On Appeal From [2022] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 456 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 367 OF 2019)

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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) :

1) Renewed application for extension of time to appeal

1.  On 11 February 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 367/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 3 December 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 10 November 2016 rejecting his non refoulement claim. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 28 April 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 12 May 2022). Being out of time for 13 days, the applicant took out an application on 25 May 2022 before the Judge requesting an extension of time to appeal. The Judge on 21 October 2022 rejected the applicant’s application for extension of time to appeal.

3.  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 (i.e. 28 October 2022). On 2 November 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons (where a statement was attached) and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is a Vietnam national. In 2002 and 2003, he entered Hong Kong illegally and on both occasions he was repatriated. He entered Hong Kong illegally again and in 2015, he surrendered to the Immigration Department. He raised his non‑refoulement claim on 5 February 2015 and 30 March 2015 alleging that he would be harmed or killed by Khau Manh Trung and his followers because he could not repay a debt. He was also afraid and believed that because of his involvement in illegal mining that led to the death of someone, there is now a warrant for his arrest.

3)  The Director’s Decision

6.  The Director decided against the applicant’s non‑refoulement claim. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 10 September 2018. The Board dismissed the applicant’s appeal on 3 December 2018 and the Director’s Decision was confirmed. The Board held that the applicant has never received any threats from his lender or the lender’s followers ever since he left Vietnam. The lender did find the applicant’s family but they only verbally threatened them. The applicant was never physically harmed by the lender and never received any medical treatment. He was able to escape Vietnam without difficulty. Whether mentally or physically, the applicant did not experience the minimum level of harm required to establish a real risk of harm. The matter between the lender and the applicant was a personal matter, not a state matter. It is the applicant’s own speculation that the Vietnam government will pursue him because of his involvement in illegal mining. Even if he was being pursued, it was simply the Vietnam government fulfilling their duties and it was not persecution. There was no evidence to suggest that there would be state acquiescence if the applicant was to seek for the help of authorities.

5)  Decisions of the Judge

8.  In his decision dated 28 April 2022, the Judge held that no proper ground for seeking relief was stated in the applicant’s Form 86 or affirmation, nor did he request for an oral hearing of his application. There was no error of law or procedural unfairness.

9.  In his decision dated 21 October 2022, the Judge held that the applicant’s explanation for his delay was conflicting as he provided two different reasons and explanations. The Form CALL‑1 was sent to the applicant’s last known address without being returned on the same day. The Judge held that there were no proper or valid grounds of appeal, or any particulars of error of in the decision. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

10.  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The Form CALL-1 decision was handed down on 28 April 2022. The deadline for the appeal was 12 May 2022. The applicant was 13 days late when he filed his extension of time to appeal application on 25 May 2022. The applicant first claimed that he was late because he was in close contact with a person who had coronavirus causing him to live in isolation and unable to lodge the appeal, then during the hearing he gave a different explanation saying that he changed residence and he did not receive the Court’s decision until he went back to his former address to check. The court record showed that the decision was mailed to him on the same day as Form CALL‑1 without being returned undelivered. The applicant was unable to recall whether he had updated the Court of his latest address.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, he asked that he be granted leave ‘to advance a new sole ground of appeal’ without explaining what that ground was. He stated that he had no opportunity to clarify his case. In the statement attached to his summons, he repeated the factual background and made broad and vague statements without specifying how they relate to his case, or where it could be shown that the Judge was in error.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 2 November 2022.