RE NGUYEN VAN TUYEN

CAMP 253/2023, [2024] HKCA 113

On Appeal From [2023] HKCFI 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 253 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1244 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1)  Renewed application for extension of time to appeal

1.  On 9 May 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 1244/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 3 May 2019 which dismissed the applicant’s appeal/petition against the Director’s Decision of 20 December 2017. Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 24 May 2023.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 7 June 2023).  Being out of time for one day, the applicant took out an application on 8 June 2023 before the Judge requesting an extension of time to appeal.  The Judge on 13 July 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 13 July 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and statement, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is a Vietnam national.  According to the applicant, he left Vietnam for the Mainland in June 2015.  He then entered Hong Kong illegally through Shenzhen on 17 June 2015.  The applicant alleged that if he returns to Vietnam he would be harmed or killed by a creditor over unpaid debts.

3)  The Director’s Decision

6.  The Director decided against the applicants’ non-refoulement claim on 20 December 2017.  The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board dismissed the applicant’s appeal against the Director’s Decision on 3 May 2019 (‘the Board’s Decision’).  In the Board’s Decision, the Board held that the applicant did not present himself as either particularly believable or unbelievable, and proceeded to consider the applicable non-refoulement risks.  The Board held that the problem the applicant faced was that the applicant’s version of events is purely a private matter relating to an outstanding loan.  Avoidance of loan is not a non-refoulement Convention reason. Reasonable state protection was available in Vietnam.  The applicant did not report the case to the local authorities.  There was no evidence to show that the applicant was the target of the government.  

5)  Decisions of the Judge

8.  In his decision dated 24 May 2023, the Judge held that the applicant failed to put forward any proper grounds for the intended challenge in either his Form 86 or affirmation, nor was there any request for oral hearing.  There was no error of law or procedural unfairness.

9.  In his decision dated 13 July 2023, the Judge stated that one day delay was insignificant and focused on the intended appeal.  The applicant was unable to put forth any valid ground of appeal to challenge the Judge’s decision.  The application for extension of time to appeal was dismissed. 

6)  Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

11.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the Judge’s decision. 

12.  The Judge’s decision was handed down on 24 May 2023.  The deadline for the appeal was 7 June 2023.  The applicant was one day late when he filed his extension of time to appeal application on 8 June 2023.  We agree with the Judge that the delay was insignificant. 

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, he stated that the Court’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country and that the merit in the case was the justification for allowing appeal out of time.  In his statement, he repeated the factual background and complained about the decisions below.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 13 July 2023.