RE NGUYEN XUAN KHUONG

CAMP 109/2024, [2025] HKCA 59

On Appeal From [2024] HKCFI 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 109 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1340 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 20 May 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1340/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 16 May 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 20 April 2017 rejecting his non-refoulement claim.

2.  Deputy High Court Judge KW Lung dismissed the application for leave to apply for judicial review on 22 February 2024.

3.  The applicant by summons issued on 19 March 2024 sought an extension of time to appeal against the Judge’s decision.  In his decision dated 14 June 2024, the Judge held that the application for extension of time for appeal was refused.

4.  On 20 June 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.  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 written statement attached to his summons, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is a national of Vietnam.  He illegally entered Hong Kong on 10 August 2016 via Shenzhen by hiding under a lorry.  On 17 August 2016 and 31 August 2016, he made a non-refoulement claim by way of written signification[1].

7.  The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by his creditor Toan due to money borrowed for his aquaculture business[2].

8.  The background facts have been summarized in the decision of the Judge at [3] to [4].

3)  The Director’s Decisions

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

4)  The Board’s Decision

10.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[4].  After a hearing held on 21 February 2019, the Board dismissed the applicant’s appeal on 16 May 2019 (‘the Board’s Decision’).

11.  The Board’s finding is summarized in the decision of the Judge at [7]-[9].

5)  Decisions of the Judge

12.  In his decision dated 22 February 2024, the Judge held that the applicant’s purported grounds for judicial review were mainly based on his personal judgment and opinion[5].  The applicant failed to show any realistic prospect of success[6].

13.  In his decision dated 14 June 2024, the Judge held that the applicant provided no reason for his delay in appeal[7].  He further held that the Board refused the applicant’s case that he ever borrowed money from his creditor Toan.  The application for extension of time for appeal was refused[8].

6)  Legal principles

14.  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

15.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to take out an appeal from the date of the Form CALL-1 decision. 

16.  The Form CALL-1 was dated 22 February 2024. The deadline for applying for leave to apply for judicial review was 7 March 2024.  The applicant was around 12 days late when he took out a summons for extension of time to appeal on 19 March 2024.  The applicant provided no reason for the delay[9].

(2)  Prospect of the intended appeal

17.  In the applicant’s present summons, no reason for extension of time was provided.  The applicant in his affirmation simply stated that the High Court’s decision was reached unfairly, or that the merits constitute sufficient reason to allow appeal out of time, without providing further elaboration.  In his written submission, he stated broad and vague assertions.  They include the following :

i)  The Court’s decision was unsatisfactory;

ii)  If the applicant returns to Vietnam his life will be seriously threatened because the gangsters in Vietnam were different than in Hong Kong and most of them being cruel and violent.  They disregard the law and are willing to kill;

iii)  The Director’s suggestion to change living location is completely unfeasible as there are difficulties and obstacles, and the applicant’s health is not good, and there was no guarantee that the applicant can adapt to the new place;

iv)  It is likely that the applicant’s creditor can find the applicant if he returns as he has a nationwide social network;

v)  The problem is that the Director did not consider the applicant’s human rights; and

vi)  The applicant requests the Court of Appeal to give him a chance to seek justice.  

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

19.  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 and when he refused to grant extension of time to appeal.

20.  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

21.  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 20 June 2024.