RE BUI VAN NAM

CAMP 160/2024, [2025] HKCA 449

On Appeal From [2024] HKCFI 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 160 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 22 OF 2024)

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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 3 January 2024, the applicant issued his application for leave for judicial review by Form 86 in HCAL 22/2024 out of time^[1].  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 July 2023 which confirmed the Director’s Decision of 28 December 2021.  Deputy High Court Judge KW Lung refused to grant leave for judicial review on 24 April 2024.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 8 May 2024).  Being out of time for over one month, the applicant took out an application on 13 June 2024 before the Judge requesting an extension of time to appeal.  The Judge on 14 August 2024 rejected the applicant’s application for extension of time to appeal.

3.  On 22 August 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  

4.  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 statement enclosed with his summons, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  The applicant is a Vietnam national^[2]. In 2015 and in 2018, the applicant entered Hong Kong illegally and was repatriated on both of those occasions^[3].  In 2019, he entered Hong Kong illegally again but this time he surrendered to the Immigration Department and made a non-refoulement claim, but he withdrew his claim and he was accordingly repatriated again^[4].  In 2021, the applicant entered Hong Kong illegally again and raised a non‑refoulement claim on 31 March 2021 alleging that if he returned to Vietnam he would be harmed or killed by his creditor Phan Viet Dinh for non-repayment of a loan for his business^[5].

6.  The background facts have been summarized in the Board’s decision at [4] to [22].

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 28 December 2021.   The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution^[6] (‘the Director’s Decision’).

4)  The Board’s Decision

8.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)^[7]. After a hearing held on 5 May 2023, the Board dismissed the applicant’s appeal on 12 July 2023 (‘the Board’s Decision’).

9.  The Board’s finding is summarized in the Board’s Decision at [68]‑[87] (On torture claim and credibility), [101]‑[110] (On internal relocation).

5)  Decisions of the Judge

10.  In his decision dated 24 April 2024, the Judge held that since the applicant himself applied by affirmation for his case to be withdrawn because he stated that it was safe for him to return to Vietnam, there was nothing then outstanding in the action.  Applying this Court’s judgment in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19(1)], the Judge dismissed the application for leave for judicial review without going into the merits^[8]. 

11.  In his decision dated 14 August 2024, the Judge applying another judgment of this Court in Re Das Purnima Rani [2019] HKCA 669 at [41]‑[42], held that the applicant by a deliberate and informed decision to withdrawal by the applicant before the Board, notwithstanding the lack of consideration into the merits, the appeal was properly disposed of by the Board.  The Judge refused to extend time to appeal^[9].

6)  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

13.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal the decision of the Judge. 

14.  The Form CALL-1 decision was handed down on 24 April 2024 (i.e by 8 May 2024 to appeal).  The applicant was over one month late when he filed his extension of time to appeal application on 13 June 2024.  The applicant did not provide any explanation for the delay in his documents.

(2)  Prospect of the intended appeal

15.  In the applicant’s summons, the applicant did not provide any grounds of appeal.  In the applicant’s affirmation, he merely stated that the High Court decision was reached unfairly and there was no chance for the applicant to clarify his case.  He also stated that the merit of his case was sufficient for the Court to exercise its discretion to allow an appeal out of time.  No explanations were provided on those two grounds.  The applicant’s statement consists entirely of bald assertions including :

i)    It was unsatisfactory that the Court ruled that he had no chance of success in reviewing the Board’s Decision;

ii)   He will be seriously threatened or even killed if he returns to Vietnam because the creditors there are different from those in Hong Kong;

iii)  Relocation was not feasible, as he will face difficulties and there is no guarantee that he will adapt;

iv)  The nationwide social network of gangsters make it very likely for him to be located;

v)   The Immigration Department did not consider his human rights under the Basic Law; and

vi)  He seeks justice and asks for asylum in Hong Kong.

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

17.  We would first point out that the Judge’s reliance in   Re Das is inappropriate.  It was a case concerning a withdrawal of an appeal made before the Board whereas the Judge was dealing with the withdrawal of the application for leave to apply judicial review before him.  The role of the Board is different from the role of the Court in dealing with non-refoulement claims.  Re Manik is the more appropriate authority in the present case.  Similar to Re Manik, in the recent case of Re Ngo Xuan Tuyen [2024] HKCA 1140 at [7], the applicant asked the judge for withdrawal of his application for leave to apply for judicial review.  The applicant confirmed that the application was of his own free will and that he understood the consequences of the withdrawal.  The judge there applied Re Manik and dismissed the application without determination on the merits^[10].  This Court dismissed the applicant’s application for extension of time to appeal the Judge’s decision for being without any merit.

18.  We will apply Re Ngo to the present case^[11].  In the court below, the applicant had, of his own motion, applied to the Judge to withdraw his application for leave to apply for judicial review with full knowledge of the consequences^[12].  The Judge had accordingly acceded to his application to withdraw.  As there was nothing outstanding in the action, and the Judge correctly concluded the action by making an order to dismiss the application.  As the dismissal before the Judge was based on the applicant’s own application to withdraw his application for leave to apply for judicial review, it was not necessary for the Judge to adjudicate on the merits of that application.  There is no merit in the applicant’s present application.

8)  Disposition

19.  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 22 August 2024.