RE PHAM SY NGUYEN

CAMP 35/2025, [2026] HKCA 471

On Appeal From [2024] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1918 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s application by summons dated 21 February 2025 for extension of time to appeal against the order of Deputy High Court Judge KW Lung dated 13 February 2025 ([2025] HKCFI 124)  (‘the EOT Decision’), refusing to grant extension of time to the applicant to appeal against the Judge’s earlier decision dated 16 September 2024 ([2024] HKCFI 2283)  (‘the Leave Decision’).

2.  By the Leave Decision, the Judge dismissed his application for leave to apply for judicial review (‘the Leave Application’)  against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’)  dated 3 July 2019 (‘the Board’s Decision’), whereby the Board dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 24 December 2018, refusing his non-refoulement claim.

3.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [1]-[9] of the Leave Decision.  The Judge has set out his reasons for refusing the Leave Application: see [10]-[18] of the Leave Decision.  The Judge has also set out in detail his reasons for refusing the extension of time to appeal application taken out by the applicant: see [2]-[7] of the EOT Decision.  We will not repeat those details herein.

4.  The applicant did not provide any ground for the present application.  The applicant also filed a supporting affirmation and it also did not provide any ground of the intended application. 

5.  Despite the directions of the Registrar of Civil Appeals dated 21 February 2025, the applicant has failed to lodge written submissions by the stipulated deadline.  The applicant is deemed to have abandoned his right to rely on written submissions.

6.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court (Cap. 4A) (‘the RHC’).

I.  Discussion

7.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3]-[8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

8.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  In deciding whether to extend time to appeal, the Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

9.  The prospect of success of an intended appeal is important.  The Court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mstv Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s Decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

11.  As noted by the Judge at [6] of the EOT Decision, the applicant first applied for extension of time to appeal before the Judge by way of a summons filed on 5 December 2024.  By then, he was late for around two months in taking out his application, which amounted to very substantial and inordinate delay: [6] of the EOT Decision.  He also failed to provide any good reason to justify his substantial delay: [7] of the EOT Decision.

12.  More importantly, his intended appeal has no substance.  At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His complaints were also mainly directed at the Board’s Decision, and he failed to identify any error with specific particulars against the Leave Decision.  The Judge had considered those submissions and rejected the same with detailed reasons at [8]-[18] of the Leave Decision.  In the absence of demonstrating any error in the Leave Decision, the applicant’s assertions are plainly not valid grounds of appeal. We see no basis to disturb the Leave Decision.

13.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

14.  The application is dismissed.