RE BUI VAN TOAN

CAMP 162/2022

[2022] HKCA 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 162 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1197 OF 2021)

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D E C I S I O N

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

1.  Background

1.  On 19 August 2021, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Immigration Department dated 19 August 2021 and the Torture Claims Appeal Board decision. 

2.  The applicant is a national of Vietnam.  He came to Hong Kong illegally from the Mainland allegedly on 24 November 2015.  The applicant raised a non-refoulement claim on 26 November 2015 based on his fear that he would be harmed or killed by a creditor Minh for a debt which he has no means to repay.

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

4.  The applicant appealed/petitioned against the Director’s Decision to the Board on 2 May 2017.  An oral hearing was conducted on 14 March 2019 for the Board’s assessment of all applicable grounds.  The Board found that some of the most important aspects or elements of the applicant’s claim have no objective support.  There were major differences between the applicant’s written evidence and his evidence at the hearing.  The Board found that the applicant’s account was not credible and the Board rejected it as untruthful.  The Board found that there was no real risk that the applicant will be ill-treated if he returned.  All applicable grounds for non-refoulement were refused.  The Board dismissed the applicant’s appeal and the Director’s Decision was affirmed.

5.  Shortly after the Board’s decision of 3 May 2019, the applicant was refouled to Vietnam on 21 May 2019.  About two years later, the applicant claimed that he had illegally entered Hong Kong again on 30 June 2021.  He then raised a subsequent claim by written representation on 9 July 2021 and 14 July 2021.  The Director assessed the applicant’s claim that he was allegedly threatened by new creditors and the temple he built had been demolished.  He found that there was no significant change of circumstances since the applicant’s previous claim was determined, which would give a realistic prospect of success to his subsequent claim and rejected his subsequent claim.

6.  In his decision of 5 January 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review.

II.  Application for extension of time to appeal

7.  The applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 21 January 2022 before the Judge requesting an extension of time to appeal.  The Judge on 3 March 2022 rejected the applicant’s application.  The Judge stated that the CALL-1 Form was dated 3 January 2022.  This is not correct as the CALL-1 Form was dated 5 January 2022.  The summons for extension of time was taken out on 21 January 2022.  This means that the applicant was late by two days in any event. 

8.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 20 May 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by about two months and 10 days.

9.  Under Order 59, rule 14A(1)  of the Rules of the High Court, 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.

III.  Decisions of the Judge

10.  In his decision dated 5 January 2022, the Judge held that the applicant submitted no valid ground to assist his application to judicially review the Director’s subsequent decision.  The Director had considered the applicant’s evidence and applied the appropriate law.  The Court did not find any error of law or procedural unfairness in the Director’s subsequent decision.  

11.  In his decision dated 3 March 2022, the Judge held that the Court’s decision was sent to the applicant at his last known address and it was not returned undelivered.  The applicant could not set out any valid ground to challenge the Director’s subsequent decision.  The applicant could not point out any error in the Court’s decision.  There was no realistic prospect of success in the intended appeal.

IV.  Legal principles

12.  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.

V.  Analysis

1)  Length of delay and reasons for the delay

13.  A two-day delay in lodging the appeal is an insignificant delay.  The Court will focus on the merits.  The applicant in his summons stated that he would ‘advance a new sole ground of appeal’ without specifying what that ground is.  In his affirmation, he stated that the decision was unfair.  He was not given an opportunity to clarify his case and the situation in his country.  No particulars or explanations were provided.  In his statement, he repeated his discontent towards the Director’s and the Board’s finding that it was possible for him to relocate.  He repeated that he would be harmed or killed if he returned to his country because Vietnam gangsters were cruel and violent.

2)  Prospect of the intended appeal

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

15.  The Judge was correct to rule that the Director’s subsequent decision was correctly assessed.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time to apply for judicial review.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

VI.  Disposition

16.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 20 May 2022.