RE LE DE AN

CAMP 55/2024, [2025] HKCA 185

On intended appeal from [2023] HKCFI 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 993 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 the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 3 January 2023[1] dismissing 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 to allow the late filing of his notice of appeal to appeal the decision of the Director of Immigration (“the Director”).

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 37.  He entered Hong Kong illegally and was arrested by the police on 10 August 2020.  He raised a non-refoulement claim based on fear of being harmed or killed by his creditor due to his inability to repay the debt. The details of his claim were set out in [6] of the Director’s decision. 

6.  By a decision dated 20 May 2021, the Director rejected the applicant’s claim under the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] ground.  

7.  The applicant intended to appeal the Director’s decision to the Torture Claims Appeal Board.  His notice of appeal was received by the Board on 10 January 2022. 

8.  Under section 37ZS(1)  of the Immigration Ordinance, Cap. 115, a notice of appeal must be given to the Board within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3). 

9.  Under section 37ZT(3), the Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person (a)  had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but (b)  failed to file the notice within the period because of circumstances beyond the person’s control.

10.  The applicant’s notice of appeal is late by more than seven months.  In accordance with the requirements laid down in section 37ZT(2)  of the Immigration Ordinance, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal. 

11.  By its decision given on 23 August 2022, the Board refused to accept the late filing of the notice of appeal. 

12.  In gist, the Board noted that the applicant received the Director’s decision from the Duty Lawyer Scheme (which represented him in the proceedings before the Director)  on 25 May 2021, the applicant was serving a prison sentence from 16 October 2021 to 15 January 2022, and he gave no explanation why he did not lodge an appeal after obtaining the Director’s decision and before he was imprisoned.  The Board did not accept that the applicant’s imprisonment was the reason for the late filing of the notice of appeal as he could have filed an appeal with the assistance of the Correctional Services Department. The Board also held that the applicant’s letter to the Board dated 1 December 2021 did not constitute a valid notice of appeal as it was not in the prescribed form as required by section 37ZS(2)  of the Immigration Ordinance.  The Board concluded that the applicant failed to explain with credible evidence the delay in filing the notice of appeal and there was no basis for allowing the late filing of his notice of appeal.  

13.  On 26 March 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than stating in the supporting affirmation that he could not return to Vietnam as his life would be in danger, the applicant did not provide any grounds for seeking relief.  

14.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By the Form CALL-1 dated 3 January 2023, the Judge refused to give leave for applying for judicial review, finding that the intended judicial review was not reasonably arguable and had no reasonable prospect of success.  Specifically, the Judge agreed with the Board that the applicant failed to satisfy the requirements of section 37ZT, and there was no error of law, irrationality or procedural unfairness in the Board’s decision.

15.  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 13 June 2023.

16.  By a summons filed on 3 July 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 25 August 2023[6] refused the application. 

17.  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. 

18.  The applicant was late by more than five months, which is a serious delay.  Both in the Court below and in the present application, the applicant 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.  In our view, what was stated in the affirmation cannot satisfactorily explain the serious delay. The applicant therefore has to show that his intended appeal enjoys a real prospect of success.

19.  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.

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

21.  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.

22.  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 engage the Board’s decision and the Judge’s decision, and are irrelevant to the reasoning given by the Board and the Judge.  Nor have they identified any error in the Board’s decision and the Judge’s decision.  The applicant has therefore failed to show that his intended appeal has any merit, let alone a real prospect of success.   

23.  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 filed 25 March 2024.