RE NGUYEN VAN QUYEN

CAMP 243/2024, [2025] HKCA 510

On intended appeal from [2024] HKCFI 1716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 243 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1491 OF 2022)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is a renewed application by the applicant for extension of time to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 2 July 2024 ([2024] HKCFI 1716)  which refused to extend the time for him to apply for judicial review and dismissed his application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  refusing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

3.  The applicant has filed an affirmation and provided a statement to support his application. 

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 45.  He entered Hong Kong illegally and was arrested by the police on 5 November 2019.  He was convicted of an offence of theft and sentenced to 15 months’ imprisonment.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by his creditor due to his inability to repay a loan.  The details of his claim were set out in [6] of the Director’s decision.  

6.  In gist, the applicant claimed that he took out a loan from a triad-related moneylender to start a business.  When he could not keep up with the repayment, the creditor and his gang threatened and assaulted him.  After he left home to avoid them, they continued to harass his wife and family.  His father had made a report to the police but no action was taken against the creditor.  He later left for mainland China from where he sneaked into Hong Kong.

7.  By a decision dated 18 August 2020, the Director rejected the applicant’s claim under the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] ground.  

8.  The Board heard the applicant’s appeal at an oral hearing held on 13 January 2021.  By a decision dated 8 March 2022, the Board dismissed the appeal.  In summary, the Board found the applicant’s evidence incredible having regard to numerous internal inconsistencies, contradictions with the account given to the Director and its inherent implausibility, and rejected his claim in its entirety.  The Board also found that, even on his evidence, the requirements for non-refoulement under the applicable grounds were not satisfied.  The Board further found state protection and internal relocation alternatives were reasonably available, which would reduce any risk of harm that the applicant might face on his return to Vietnam.  The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.  

9.  On 14 December 2022, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1)  of the Rules of the High Court requires an application for leave to apply for judicial review 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 six months.  The applicant did not provide any reason for the delay.  He also did not provide any grounds for seeking relief.  

10.  The Judge heard the application at a hearing on 18 June 2024.  By a Form CALL-1 dated 2 July 2024, the Judge refused to extend the time for applying for judicial review and dismissed the application.  The Judge found the applicant failed to satisfactorily explain the serious and inordinate delay and the intended judicial review had no prospect of success as he failed to show any error of law, procedural unfairness or breach of high standards of fairness in the Board’s consideration and assessment of his claim. 

11.  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.  The 14-day period for the applicant to appeal ended on 16 July 2024.

12.  By a summons filed on 3 October 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 28 November 2024, and by his decision handed down on 12 December 2024 ([2024] HKCFI 3484)  refused the application.

13.  By a summons filed on 19 December 2024, the applicant made an application for leave to appeal out of time against the Judge’s decision dated 12 December 2024. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision of 2 July 2024.  

14.  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 two months, which is a substantial delay.  In the Court below, the applicant explained that he was in prison until 27 July 2024 when he was transferred to Castle Peak Bay Immigration Centre, and he could only obtain assistance at the immigration centre.  In the present application, he did not provide any explanation for the delay.  He merely said in his affirmation that there was a good ground of appeal that had not been considered in the application for leave to apply for judicial review, but did not set out what the ground was.  As the Judge pointed out, the applicant could have sought the assistance of the welfare officer while detained in prison.  We agree with the Judge that the applicant failed to satisfactorily explain his delay.   

16.  As to 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.  In his summons and supporting affirmation, the applicant has not put forward any substantive ground to support the intended appeal.

18.  In the statement that was lodged together with the present summons, the applicant stated that (a)  the Judge’s decision was unsatisfactory; (b)  the creditors and gangsters in Vietnam are cruel and violent and his life would be seriously threatened or he might even die; internal relocation was not feasible; (c)  he feared he would be tortured by the Vietnamese police as he was wanted by them for disturbing the public order; and (d)  the Director had not considered his human right.

19.  We are of the view that the matters stated in the Statement do not constitute viable arguments in support of the intended appeal.  Importantly, they do not identify any error in the Judge’s decision.  Neither do they show any error of law, irrationality or procedural irregularity or unfairness in the Board’s decision.  Further, in light of the Board’s rejection of the factual basis of his claim, there is no evidential basis for the assertions made in the Statement.  The applicant has therefore failed to show that his intended appeal has any merit, let alone a real prospect of success.  

20.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons.