RE BUI VAN TUYEN

CAMP 23/2023, [2024] HKCA 610

On appeal from [2022] HKCFI 2363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 23 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 953 OF 2019)

____________________

____________________

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 1 December 2022 refusing to extend time for the applicant to appeal against his decision dated 10 August 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 June 2018 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 29 August 2016 and 1 December 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 8 November 2014 and was arrested by the police on 12 November 2014.  Thereafter, he lodged a non-refoulement claim on 22 November 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor by reason of his inability to repay an outstanding loan.  The details of the applicant’s claim have been summarised by the Board at [6] to [22] of the Board’s Decision.

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 29 August 2016 and 1 December 2016 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 11 April 2018, the Board dismissed the appeal on 5 June 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  In dismissing his appeal, the Board found that the inconsistencies in the applicant’s evidence were fatal to his case, rendering his claims of alleged harm incredible.

The Judge’s decision

6.  The applicant filed a Form 86 on 9 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he deposed that by reason of his inability to settle his debts, he would be “punched and killed by the creditors”.

7.  On 4 July 2022, the applicant sent a letter to the court (“the Withdrawal Letter”), stating that as “all problems [are solved] in Vietnam”, and he would like to “withdraw [his] judicial review because [he wanted] to go back to [his] home country “Vietnam” as soon as possible”.

8.  Taking into consideration the circumstances of the case, as well as the applicant’s ex parte application for withdrawal, the Judge by his decision in the CALL-1 Form[5] dated 10 August 2022 dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [3] to [5] of the CALL-1 Form as follows:

“3. The applicant sent a letter to the Court on 4 July 2022, saying that he is willing to withdraw his application because all his problems in Vietnam had been solved and he wants to return to his country as soon as possible.

4. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.’

5.  The application is therefore dismissed.”

The present application for extension of time to appeal

9.  The applicant’s last known address in his Form 86 was at Tung Chau Street, Sham Shui Po, Kowloon.  According to the Withdrawal Letter, the applicant’s address was stated to be at Tai Tam Gap Correctional Institution (“the Institution”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Institution on 10 August 2022, which was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 10 August 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 1 November 2022 seeking extension of time to appeal, in which his address was also stated to be the Institution.  In his supporting affirmation filed on the same date, he claimed that his life would still be in danger should he return to Vietnam.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 1 December 2022[6].

13.  By a summons filed on 17 January 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 1 December 2022, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 10 August 2022.  Although in the summons the applicant purported to seek leave to appeal (out of time) against the decision of the Judge dated 1 December 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 10 August 2022, by which leave for judicial review was refused.

14.  In his summons and supporting affirmation filed on the same date, the applicant stated that he was dissatisfied with “the Non-Refoulement claims decision” and that this court was “wrong as a matter of law for not having applied the principle of irrationality to the decision made by [the Director]”.

15.  In the applicant’s written submissions lodged on 26 January 2023, he contended that his life would be in danger should he be refouled to Vietnam, that the Board and/or the Director failed to adhere to the high standards of fairness in reaching their Decisions, and that he was prejudiced in the processing of his claim because he lacked legal and language assistance.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  The applicant has failed to provide the date on which he had learned of the Judge’s decision dated 10 August 2022.  Further, the letter from the court sent to him at the Institution was not returned undelivered, and the inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision as from that date.

18.  Having had notice of the Judge’s decision as from 10 August 2022, the applicant did not take out the application for extension of time to appeal in the court below until almost 3 months later.  The applicant has failed to provide any or any reasonable explanation for this serious delay.  This delay is substantial, unexplained and unacceptable, and the application is liable to be dismissed on this basis alone.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The manner in which the applicant has prosecuted these proceedings is regrettable.

21.  We note that despite the applicant in the Withdrawal Letter claiming that all alleged “problems” in Vietnam have been resolved and that his intention was to return as soon as possible, for reasons unknown and unexplained, he is now seeking to appeal against the Judge’s decision.

22.  As is clear from the procedural history set out above, the applicant’s application for leave to apply for judicial review was dismissed upon his own application for withdrawal of the same.  It is clearly an abuse of process of the court for the applicant to complain of, and seek to appeal against, the Judge’s dismissal of the very application he himself had applied to withdraw.  The intended appeal is thus in our view hopeless and utterly devoid of merit.

23.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

24.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

25.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

26.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 17 January 2023 is accordingly dismissed.