RE TRUONG MINH HOANG

CAMP 200/2023, [2026] HKCA 898

On appeal from [2022] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 200 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 921/2021)

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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 To (“the Judge”) dated 8 August 2022[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review. 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 13 May 2021 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 23 July 2020 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 [5]-[19], which will not be repeated.

3.  The applicant did not request for an oral hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [20]-[24] of the Leave Decision.  

4.  By a decision dated 6 March 2023[2] (“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 8 August 2022, 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 29 May 2023, the applicant renewed his application for an extension of time to appeal before this court. 

9.  In his supporting affirmation and a 3-page Statement (“the Statement”) attached thereto, the applicant complained that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and “situation in [his] country”.  He further claimed that if he were to return to Vietnam, his life would be seriously threatened by creditors and gangsters in Vietnam.  

10.  Apart from the Statement, the applicant did not lodge any further written submissions in support of the present Summons.  

11.  For completeness, it should be noted that the applicant lodged two letters with the court, respectively on 24 June 2023 (a letter in Chinese; “the Chinese Letter”) and on 5 July 2023 (a letter appearing to be in Vietnamese; “the Vietnamese Letter”).  In the Chinese Letter, the applicant asked the court to “dismiss all application documents” by reason of his detention at Lai Chi Kok Reception Centre.  As for the Vietnamese Letter, the court by a letter dated 12 July 2023 (sent to the applicant at Lai Chi Kok Reception Centre) directed the applicant to lodge an English translation of the Vietnamese Letter for the purpose of determining the present application, but the applicant neither complied with the direction nor responded to the letter.

12.  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

13.  The court’s letter enclosing a copy of the Leave Decision was sent to the last known address of the applicant, which was not returned undelivered.  The applicant is therefore deemed to have had knowledge of the contents of the Leave Decision within the period 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, and the consequences of failure to do so must lie with him.  The applicant has also wholly failed to explain how and when he had come to learn of the contents of the Leave Decision. 

14.  We are therefore of the view that the applicant has failed to proffer any or any reasonable explanation for the delay in lodging his intended appeal.

15.  As for the present renewed application, there is a delay of over 2 months, which is not insignificant. The present application is liable to be dismissed on this basis alone. However, we will nonetheless proceed to consider the merits of the intended appeal.

16.  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.

17.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  In any event, general assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  

18.  In the present case, the Board found that the applicant’s evidence on the taking out of a loan with his creditor to be incredible, and thus rejected the fundamental basis of his claim of fear of harm upon refoulement (Board’s Decision, [89]-[91]).  In any event, the Board found there to be adequate state protection available to the applicant in order to minimise the risks of harm, if any.  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 [12]-[24].  We see no basis to interfere.  

19.  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.

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 29 May 2023 is accordingly dismissed.