RE BUI DUC HIEN

CAMP 312/2023, [2025] HKCA 262

On intended appeal from [2023] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 312 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 788 OF 2022)

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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 Bruno Chan (“the Judge”) dated 20 April 2023[1] refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

2.  The applicant has filed a supporting affirmation to support his application. Despite directions given by the Court, he has not filed 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 papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Vietnam aged 33. He was arrested by the police on 8 May 2020, after entering Hong Kong illegally. The applicant lodged a non-refoulement claim on 10 May 2020 based on fear of being harmed or killed by a loan shark due to his inability to repay his debt. The applicant claimed that the loan shark and his people came to his home to collect repayment, during which they made death threat. There was another occasion when they came armed with choppers but he managed to escape unharmed. The details of his claim were set out in [6] of the Director’s decision.

5.  By a notice of decision dated 21 December 2020, the Director rejected the applicant’s claim, having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds.

6.  The Board heard the appeal at an oral hearing held on 30 December 2021. By its decision given on 4 May 2022, the Board dismissed the applicant’s appeal.

7.  In gist, the Board found the applicant’s evidence inconsistent with his account given to the Director and implausible. The Board held that he had failed to establish the primary facts of his case, and the feared risk was unlikely to materialise. The Board also held that, even on the applicant’s case, it was a private dispute and no violence had occurred to him. The Board further found state protection and internal relocation option were reasonably available, which would reduce any risk that the applicant might face. The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection and dismissed his appeal.

8.  On 17 August 2022, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. His grounds for seeking relief were summarised by the Judge at [9] of the Form CALL-1 as follows:

“(1) That the Director and the Board reached the decisions wrongly in assessing the Applicant’s non-refoulement claim in that their decisions were not reasonable or fair as required by the Wednesbury test in failing to recognize that the right to life must be protected by criminal law from extra-judicial killings that the Applicant may face if deported back to his home country;

(2) That the Adjudicator failed to give the Applicant sufficient time and opportunity to arrange for relevant evidence for his non-refoulement claim and appeal;

(3) That the Director failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4) That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which is a clear case of unfair attitude shown by the director which in itself is enough to render the decision void;

(6) That the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organization had compiled reports on the matter which stated testament to the Applicant’s assertions and hence the Director failed to attain high standard of fairness required by Wednesbury test in the decision which should be considered unreasonable in the scope of public law.”

9.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application was late by 13 days.

10.  The Judge heard the application at a hearing held on 21 March 2023. By a Form CALL-1 dated 20 April 2023, the Judge refused to extend time and dismissed the application for leave to apply for judicial review. The Judge considered the delay was not substantial and went on to consider the merits of the intended appeal. For the reasons set out in [14] to [18], he found the intended judicial review had no prospect of success. In brief, the Judge found the grounds put forward by the applicant were just broad and vague assertions with no indication as to how they could be applied to his case. Secondly, the Judge pointed out that the Board, which is the primary decision maker, had found against the applicant on the credibility of his evidence and there was no valid basis to challenge the findings. Thirdly, the Judge had regard to the fact that both the Director and the Board had found the risk of harm to be a localised one and internal relocation was viable. Fourthly, the Judge considered there was no error of law, procedural unfairness or failure to apply high standards of fairness in the consideration and assessment of the Director and the Board.

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 decision within 14 days after it was made. On 20 July 2023, more than three months after the expiry of the 14-day period, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision. The Judge heard the application at a hearing on 24 August 2023. By his decision handed down on 7 September 2023[6], the Judge refused the application.

12.  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.

13.  The applicant was late by more than three months, which is an insubstantial delay. Both in the Court below and in the present application, the applicant stated in the affirmation that he was unrepresented and had no means to instruct a lawyer. At the hearing before the Judge, the applicant further explained that since February 2023 he was serving a prison term and although he had received the Judge’s decision, it was only after his discharge and being transferred to the Castle Peak Bay Immigration Centre that he could seek assistance. Like the Judge, we are not satisfied that the applicant has satisfactorily explained his delay as he would be able to receive assistance from the welfare officer of the prison. In the circumstances, the applicant has to show that his intended appeal enjoys a real prospect of success.

14.  When considering the merits 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.

15.  In his affirmation in support of the present application, the applicant asserted that there is a good ground of appeal that was not considered in the application for leave to apply for judicial review. He did not, however, elaborate on what the ground of appeal is about. Other than this, the applicant has not put forward any ground of appeal.

16.  As the applicant has failed to specify any ground of appeal or point to any error in the Judge’s reasoning and decision, the intended appeal is devoid of merits and is bound to fail. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 20 September 2023.