RE TRAN VAN TU

CAMP 276/2023, [2026] HKCA 899

On appeal from [2023] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 276 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 289/2023)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 13 June 2023[1] (“the Leave Decision”) refusing to extend time for the applicant to apply for leave to apply for judicial review (and refusing to grant him leave). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 25 June 2021 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 8 February 2021 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [3]-[11], which will not be repeated.

3.  After considering the documents filed by the applicant as well as the oral submissions he made at the hearing of the leave application[2], the Judge dismissed the application for the reasons stated at [14]-[20] of the Leave Decision.

4.  By a decision dated 1 August 2023[3] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 13 June 2023, which was not returned undelivered.

6.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.  

8.  By a Summons filed on 9 August 2023, the applicant renewed his application for an extension of time to appeal before this court. 

9.  In the Summons and his supporting affirmation, the applicant stated that he was unrepresented and did not have access to any legal advice.  He also stated, without elaboration, that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.    

10.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions.  He is thus deemed to have abandoned his right to rely on written submissions in the present application.   

11.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

12.  The Leave Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s order and the contents of the Leave Decision in the period within which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with him. 

13.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained how and when he had come to learn of the contents of the Leave Decision. 

14.  We havenonetheless proceeded to consider the merits of the intended appeal.

15.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  

16.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.

17.  In the present case, the Board found the applicant to be an untruthful witness and that “he was fabricating story from time to time” (Board’s Decision, [78]).  The discrepancies in material parts of the applicant’s evidence undermined the fundamental basis of his claim of fear of harm, being the alleged threat from his creditor by reason of his default on repayments for a loan (Board’s Decision, [78]-[83]).  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [14]-[20].  We see no basis to interfere.  

18.  Accordingly, the applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  We are also unpersuaded by the applicant’s complaint of prejudice caused by his lack of legal representation.  As this court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

20.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 9 August 2023 is accordingly dismissed.