RE DINH QUANG VINH

CAMP 29/2023, [2025] HKCA 116

On Appeal From [2022] HKCFI 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 29 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 4 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 20 January 2023, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”)  dated 16 September 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2792)  (“the EOT Decision”)  against his earlier order dated 5 January 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 26)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 7 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 1 September 2017, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Vietnam.  He claimed that he entered Hong Kong illegally on 5 December 2015.  On 7 December 2015, he surrendered to the Immigration Department, and raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor Long because he had defaulted in his loan repayment.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [6] - [13] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including BOR2 risk[1], BOR3 risk[2], persecution risk[3] and torture risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 30 October 2018, he failed to attend an oral hearing before the Board.  On 7 December 2018, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons for its decision was summarised by the Deputy Judge at [14] - [17] of the Leave Decision in Chinese.  In essence, having considered the available evidence, the Board found that the injuries allegedly inflicted by the creditor and his associates on the applicant did not reach the minimum level of severity meriting non-refoulement protection[5]. The Board held that the dispute between the applicant and his creditor was private in nature without any state involvement[6]. In any event, the dispute happened three years ago and state protection would be available to the applicant upon refoulement[7]. Accordingly, the Board considered that the applicant failed to prove his case on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 2 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, the applicant asserted he could not go back to Vietnam owing to his default in repayment of the loan, but the adjudicator of the Board did not understand his dangerous situation there.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [19] of the Leave Decision.  The Deputy Judge considered that the applicant’s challenge was directed at the Board’s finding that there was no factual basis to support the applicant’s claim.  The Deputy found that there was no substance in the applicant’s challenge, as the Board was entitled to make findings of facts based on its evaluation of the available evidence and credibility of the witness as the primary decision-maker in the applicant’s claim.  Having carefully reviewed the Board’s Decision and the relevant materials and evidence, the Deputy Judge considered that there was no error of law, Wednesbury unreasonableness or procedural unfairness in the Board’s Decision.  Accordingly, leave to apply for judicial review was refused.

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 28 June 2022, the applicant filed a summons (“the EOT Summons”)  with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over five months late with his intended appeal.  In his summons, he only craved for leave to advance a new sole ground of appeal without stating what the intended ground was.  In his supporting affirmation, he claimed that he did not receive the Leave Decision from the High Court.  He also claimed that he did not speak English or Cantonese, and needed to seek help from his friend with the intended appeal.

11.  By letter dated 13 July 2022, the Deputy Judge directed the applicant to file a statement by 27 July 2022 setting out, among other things, details relating to the change of his residential addresses, and his grounds of the proposed appeal.  He was advised that the EOT Summons would be determined on paper after 21 days of the directions, regardless of whether the directions given had been complied with.  The applicant failed to comply with the Deputy Judge’s directions or to give any response.

12.  By the EOT Decision, the Deputy Judge did not accept the applicant had provided any valid explanation for the substantial delay.  As the applicant had no arguable grounds of appeal and his intended appeal had no prospect of success, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation (attaching a written statement)  all filed on 20 January 2023, the applicant applied for leave to appeal against the EOT Decision.  In the summons, the applicant again asked for leave to advance a new sole ground of appeal without giving any particulars.  In his supporting affirmation, he contended that the decision made by the High Court was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country.

14.  In his written statement, the applicant alleged that his life would be seriously threatened if refouled and that internal relocation would not be feasible as he was not an active person.  He further alleged that it would be dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with the corrupt people in the government and police apparatus.  The applicant also contended that the Immigration Department failed to consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

15.  Contrary to the directions made by the Registrar of Civil Appeals on 20 January 2023, the applicant did not lodge any written submissions.

Discussion

16.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  We consider that the applicant’s delay of over five months was very substantial.  We note from the court record that the Leave Decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post.  We agree with the Deputy Judge that the applicant should bear the consequence for his failure to inform the authorities of his change of address, and he had failed to give any good reason for his serious delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

19.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.  At the outset, the arguments raised in his summons, supporting affirmation and written statement are new and were not raised in the Court below.  It is well established that this court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  Although he alleged he had a good ground of appeal, he did not specify what the said ground was.  Moreover, those complaints were directed mainly at the decisions of the Director and the Board and did not point out with particulars how the Deputy Judge had erred in the Leave Decision.  They therefore do not constitute proper grounds of appeal. The appeal must fail on this basis alone.

21.  His complaint that the decision of the High Court was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country simply cannot stand.  The Deputy Judge decided to consider his leave application on paper as the applicant did not request for any oral hearing.  Accordingly, it was appropriate for the Deputy Judge to consider and dismiss his leave application on paper.  Even in his application for extension of time, he was directed to provide further information to substantiate his extension of time application, but he failed to provide any response.  His application for extension of time was determined on paper by the Deputy Judge accordingly.  He already had ample opportunities to present and clarify his case before the court at different stages of the proceedings.  In the premises, his complaint in this respect must fail.

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 20 January 2023 is dismissed.

23.  This judgment is written in English as the applicant’s summons filed on 20 January 2023 together with his affirmation and written statement filed in support are all written in English.