RE CU VAN DUC

CAMP 7/2024, [2024] HKCA 641

On an intended appeal from [2023] HKCFI 1064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1620 OF 2020)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal. He has filed an affirmation to support his application. Despite directions given by the Registrar of Civil Appeal, he has not lodged any written submission.

2.  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 pursuant to Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A.

3.  The applicant is a national of Vietnam.  On 17 July 2020, he filed a Form 86 to seek leave to judicially review a decision made on 27 July 2018.  He filed a supporting affirmation on 6 August 2020.  It is unclear from the papers whether the decision being challenged was made by the Torture Claims Appeal Board (“the Board”)  or the Director of Immigration (“the Director”)  as the applicant had named both the Board and the Director as proposed respondents and did not specify who was the maker of the decision. Nor did he exhibit a copy of the decision to his affirmation.

4.  The Form 86 did not set out any ground for seeking the relief.  In the supporting affirmation, the applicant merely stated that he could not return to Vietnam because his life would be in danger.

5.  By two letters to the Court dated 25 October 2022 and 11 November 2022, the applicant asked to withdraw his application for leave to apply for judicial review because he wanted to return to Vietnam and he could return there safely.

6.  The Judge by a Form CALL-1 dated 26 April 2023[1] dismissed the application for leave to apply for judicial review, having regard to the applicant’s request to withdraw his application, and applying the decision in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19].  There was no determination of the application on merits.

7.  On 11 August 2023, the applicant issued a summons applying for an extension of time to appeal the Judge’s decision.  In the supporting affirmation, the applicant stated that he wished to reopen his application as he had been informed by his family members that it would be dangerous for him to return to Vietnam and that he would be killed.  He also stated that he has no means to employ a private lawyer.

8.  The Judge dealt with the summons on the papers.  By his decision handed down on 12 September 2023[2], he refused the time extension application on the ground that as his previous order had been sealed, he was officio functus and had no further jurisdiction to deal with the application (at [7]).

9.  On 9 January 2024, the applicant filed the present summons to make a renewed application to extend the time for appeal.  Although both the summons and the supporting affirmation referred to the Judge’s order dated 12 September 2023, it is clear to us that the applicant is intending to appeal the decision refusing his application for leave to judicial review (i.e. the Judge’s order dated 26 April 2023).  We have therefore treated this application as a renewed application for extension of time to appeal the order made on 26 April 2023.

10.  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 was granted. 

11.  By the time the applicant applied to the Judge for time extension, he was more than three months late, which is a substantial delay.  The applicant explained in his supporting affirmation filed in this application that he is unrepresented and did not have any access to legal advice.  He did not elaborate on what efforts he had made to seek assistance.  We do not consider the applicant has satisfactorily explained his substantial delay.  He therefore has to show that his intended appeal has a real prospect of success. 

12.  We will first address the Judge’s reason for refusing to extend the time for appeal.  The Judge took the view that he no longer has jurisdiction as his order dated 26 April 2023 had been sealed.  However, Order 32 rule 6 of the Rules of the High Court provides that the Court may set aside an order made ex parte. 

13.  In taking the view that he has no jurisdiction to deal with the applicant’s application for time extension, the Judge referred to the judgment of this Court (Yuen JA and Lisa Wong J)  in Re Das Purnima Rani [2019] HKCA 669 at [41]-[42].  However, the issue in that case was whether the Board was correct in its view that it was functus in refusing to reinstate the applicant’s appeal after acceding to the applicant’s request for withdrawal, which depends on whether the applicant’s withdrawal of the appeal was valid (at [29]).  It was in that context that the Court held that upon a valid withdrawal, the applicant’s appeal was no longer extant such that the Board became functus officio with no jurisdiction to take any step regarding the appeal. 

14.  The reasoning in Re Das Purnima Rani has no application to the present case, which has a different context.  Notably, the summons of 11 August 2023 was an application for extension of time to appeal.  The Judge has power under Order 59 rule 15 of the Rules of the High Court to deal with an application for extension of time of appeal. 

15.  We have not lost sight that in considering whether to extend time, the Judge would have to consider the merits of the intended appeal.  In this regard, although the intended appeal might have the effect of re-opening the applicant’s judicial review application, it was not an application to the Judge to re-open the application for leave to bring judicial review.  If time extension was given and the appeal came before the Court of Appeal, the court would be considering the correctness of the Judge’s decision and reasons given in the Form CALL-1. 

16.  In any event, even if the summons is an application to re-open his judicial review application, as noted above, the Judge has power under Order 32 rule 6 of the Rules of the High Court to deal with the application.  The Judge’s view that he was officio functus and had no jurisdiction to deal with the time extension application is accordingly misplaced.

17.  We turn now to consider the merits of the applicant’s intended appeal.  The applicant has not set out in the present summons any ground in support of his intended appeal.  He only stated in his affirmation there is a good ground of appeal which has not been considered in his leave application, without giving any details or elaborations.  The applicant has therefore failed to demonstrate that his intended appeal has any prospect of success, let alone a real prospect of success. 

18.  Furthermore, the applicant had provided no ground to support his intended judicial review application.  In addition, the Form 86 was made nearly two years after the decision that he intended to judicially review.  The applicant’s application for leave to apply for judicial review is seriously out of time[3].  Given the lack of explanation for the delay and the absence of grounds to support the judicial review application, the application for leave to apply for judicial review, even if not withdrawn, would be bound to fail. 

19.  In these circumstances, the intended appeal has no merits.  It would be futile to extend the time for the applicant to appeal.  Accordingly, we dismiss the applicant’s summons filed on 9 January 2024.