RE HOANG HONG GIANG

CAMP 335/2023, [2024] HKCA 922

On intended appeal from [2023] HKCFI 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 335 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 821 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 30 May 2023[1] dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation. Despite directions given by the Court, the applicant has not lodged any written submission to support his application. 

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 born in Hong Kong, now aged 31.  On 5 April 2016, he surrendered to the Immigration Department admitting to have entered Hong Kong illegally.  He raised a non-refoulement claim based on fear of being harmed or killed by the Vietnamese authorities. 

5.  In gist, the applicant claimed that his father has been accused of using the Catholic Faith as a propaganda to incite opposition to the Vietnamese government, as a result of which he had been threatened, detained and tortured.  After his parents went into hiding, the applicant was detained and tortured to extract information of their whereabouts.  After coming to Hong Kong, he has met up with his father, who has also made a non-refoulement claim.  The details of the applicant’s claim were set out in [6] of the first decision of the Director of Immigration (“the Director”) and [4] of the decision of the Torture Claims Appeal Board (“the Board”).

6.  By two decisions dated 9 September 2016 and 6 March 2017, the Director rejected the applicant’s claim. The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The further decision relates to the BOR 2 risk^[5] ground.    

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  Four oral hearings were held on 18 May, 8 November, 20 and 24 December 2018, during which the applicant gave evidence and answered questions from the Board. 

8.  By its decision given on 22 March 2019, the Board dismissed the appeal.  The Board set out the applicant’s case and evidence in great details.  For the analysis and reasons given in [15] to [50], the Board did not find the applicant’s evidence credible and concluded that he failed to establish the primary facts and prove that there was a real likelihood that the feared risk would materialise as asserted by the applicant.  The Board also found that internal relocation was reasonably viable, which would reduce any risk that he might face.  The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection.   

9.  On 26 March 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  No grounds for seeking relief were set out in the Form 86 or the supporting affirmation.  

10.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By the Form CALL-1 dated 30 May 2023, the Judge refused to give leave for applying for judicial review, finding that the intended judicial review was not reasonably arguable and had no reasonable prospect of success.  The Judge gave his reasons at [20] to [24] as follows:

“20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

23. The Board had assessed his case and, for the reasons given above, did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

24.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

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.  The 14-day period for the applicant to appeal ended on 13 June 2023.

12.  By a summons filed on 14 August 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The application was not supported by any affidavit evidence.  The Judge dealt with the application on paper, and by his decision handed down on 20 October 2023[6] refused the application. 

13.  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. 

14.  The applicant was late by about two months.  In the Court below, the applicant did not provide any explanation for the delay.  In the present application, the applicant stated in the supporting affirmation that he was unrepresented and did not have access to legal advice.  He further said that there was a good ground of appeal that had not been considered in the application for leave to apply for judicial review, but did not set out what the ground was.  In our view, what was stated in the affirmation cannot satisfactorily explain the not insignificant delay.  The applicant therefore has to show that his intended appeal enjoys a real prospect of success.

15.  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.

16.  Other than the mere assertion in the supporting affirmation that there is a good ground of appeal, the applicant has not put forward any substantive ground to support the intended appeal.  Nor has he identified any error in the Board’s decision and the Judge’s decision.  In these circumstances, the applicant has failed to show that his intended appeal has any merit, let alone a real prospect of success.   

17.  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 2 November 2023.

18.  On 13 September 2024, the Court was informed by the Director that the applicant has already been removed out of Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.