RE TRAN TRONG DAI

CAMP 114/2025, [2025] HKCA 1116

On intended appeal from [2023] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 114 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 2066 OF 2018)

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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 To (“the Judge”) dated 12 January 2023 ([2023] HKCFI 118) refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dated 3 January 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 6 January 2017 which rejected his non-refoulement claim.

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

4.  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.

5.  The applicant is a national of Vietnam aged 40.  He entered Hong Kong illegally and on 12 May 2014 surrendered to the Immigration Department and also lodged a non-refoulement claim.  His claim is based on fear of being harmed or killed by his creditor due to his inability to repay his loan.  The Judge had given a full summary of his claim in [7] to [12] of Form CALL-1.

6.  In gist, the applicant’s case is that he had borrowed from the creditor to expand his construction business.  When he was unable to make repayment, the creditor and his people made verbal threats to him and his wife and had on one occasion assaulted him.  Fearing for his personal safety, the applicant fled to mainland China from where he sneaked into Hong Kong. 

7.  By his decision, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4] grounds.      

8.  The Board heard the appeal at an oral hearing held on 24 November 2017.  By its decision, the Board dismissed the applicant’s appeal. 

9.  The Board proceeded on the basis that the applicant’s account of the events was true.  The Board found that the creditor only meant to pressurise the applicant but did not intend to kill him, the threats and assault to the applicant did not attain the minimum level of severity, and the future risk of harm was low.  The Board further found state protection and internal relocation option were reasonably available, which would reduce or negate any risk that the applicant might face.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the four applicable grounds and dismissed his appeal.   

10.  On 28 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than asserting that he would face genuine and substantial risk of harm, if refouled, he did not provide any specific grounds for seeking relief.

11.  The application was out of time.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was late by more than four months.  No explanation was given for the delay.

12.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 12 January 2023, the Judge refused to extend time and dismissed the application for leave to apply for judicial review.  His reasons are encapsulated in [20] to [23] of Form CALL-1:

“20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

21. The Applicant’s claims were founded on his alleged debt owed to his Creditor. The Board seemingly assessed his claim on the basis of the case as he asserted. The Applicant could not have any complaint about this finding. However, it was on the basis of that finding that the Board was not satisfied that there was a real chance that he will suffer ill-treatment which would attain a minimum level of severity or would face a genuine and substantial risk of being subjected to such ill-treatment. This is a finding of fact which the Board was entitled to make on the evidence. As the Applicant bore the burden of prove of his claims, such findings were fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of internal relocation. These are finding of facts which the court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision.

22. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board. There are no vitiating elements in the Decision. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

23. In view of the total lack of merits in the intended judicial review, the Court did not find it necessary to investigate the reasons for the long delay, the relative prejudice to the Applicant and to the intended respondent as a result of the Court’s decision one way or the other.  Obviously, the application does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.  For the above reasons, no extension of time was granted for filing the Form 86 and the application for leave to apply for judicial review was refused.”

13.  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.  On 18 March 2025, which was more than 25 months after the expiry of the 14-day appeal period, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision.  The Judge heard the application at a hearing held on 9 April 2025.  By his decision handed down on 20 May 2025 ([2025] HKCFI 1871), the Judge refused the application. 

14.  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. 

15.  The applicant was late by more than 25 months, which is very serious delay.  In the Court below, the applicant explained in the affirmation that he was serving a prison term when the Judge’s decision refusing his leave application was handed down, hence he did not receive the decision and the court order.  The Judge pointed out, and we agree, that the applicant had an obligation to inform the Court or the Immigration Department of any change in his means of contact, but he failed to inform the Court about the change of his residential address which contributed to the delay.  Like the Judge, we do not consider the applicant has satisfactorily explained the serious delay.  In the circumstances, the applicant has to show that his intended appeal enjoys a real prospect of success.

16.  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.

17.  The applicant’s summons did not set out any ground for the renewed time extension application.  In his affirmation, the applicant stated that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

18.  For the reasons set out below, the matters raised in the submission do not amount to viable or arguable grounds of appeal: 

(1)     Under Order 53 rule 3(3) of the Rules of the High Court, a judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  The applicant did not request for an oral hearing in his Form 86 or supporting affirmation.  Additionally, given that he did not provide any specific grounds to support his intended judicial review, the Judge cannot be faulted for dealing with his application on paper.  The applicant’s complaint that he was not afforded an oral hearing cannot stand.    

(2)     Both in the application for leave to apply for judicial review and in the applications for extension of time to appeal, the applicant has not pointed to any ground for challenging the Board’s decision.  The Board, while accepting the applicant’s factual account, found there was no real risk of harm and that his claim did not meet the requirements of the applicable grounds.  This being the case, there is no factual basis for the applicant’s assertion that he will be in danger if he returns to Vietnam.  There is also no proper basis for the Court to judicially review the Board’s decision. 

(3)     In light of the above analysis, the Judge is correct to hold that the intended judicial review has no reasonable prospect of success, and to refuse to extend the time for him to apply for judicial review.  There is no basis for the Court of Appeal to interfere with the Judge’s decision.         

19.  In the circumstances, the intended appeal is devoid of merits.   Given that the intended appeal has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 13 June 2025.

20.  By a fax which reached the Court on 30 October 2025, the Director informed the Court that the applicant had been repatriated to Vietnam on 19 June 2025.  As the Court has not been provided with the applicant’s address in the Vietnam, a copy of this judgment will be sent to the applicant’s last known address in Hong Kong as contained in the court record.