RE DO VAN CUONG

CAMP 138/2023, [2024] HKCA 269

On Appeal From [2022] HKCFI 1377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 138 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 111 OF 2022)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 3 April 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 23 March 2023([2023] HKCFI 696) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 13 May 2022([2022] HKCFI 1377) (“the Leave Decision”) refusing leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 13 January 2022, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 21 October 2021 rejecting the applicant’s non-refoulement claim.

3.  By way of a Request for Dismissal of Appeal dated 16 November 2023, the applicant requested to withdraw the present reapplication.

4.  Subsequently, on 27 February 2024, the applicant filed a summons together with an affirmation in support requesting to “reopen the summons filed on 2 April 2023[1] and cancel the dismissal of appeal filed on 16 November 2023”, on the basis that his family recently told him that his creditor and the gangsters were still actively pursuing him to threaten his life.

5.  For present purpose, we will first deal with the merits of the summons filed on 3 April 2023.

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”).

BACKGROUND

7.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 30 September 2020.  On 15 November 2020, he was arrested by the Hong Kong police.  By written representations respectively dated 28 November 2020 and 2 September 2021, he lodged a non­refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor because he defaulted in his loan repayments.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

8.  By a Notice of Decision dated 21 October 2021 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

9.  The applicant appealed the Director’s Decision to the Board.  On 13 January 2022, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board considered his evidence wholly incredible and doubted that the applicant could have easily obtained a substantial loan without any security.  In any event, the dispute was private in nature and did not involve the state.  The Board also considered that internal relocation was a viable option and state protection would be available to the applicant.  Accordingly, the Board dismissed his appeal and reaffirmed the Director’s Decision.

10.  On 4 February 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he only stated that he could not go back to Vietnam as it would endanger his life.

THE JUDGE’S DECISION

11.  As the applicant did not request an oral hearing, the Judge determined his application on paper.  On 13 May 2022, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were set out in detail at [11] ‑ [17] of the Leave Decision.  In essence, the Deputy Judge noted that the applicant failed to advance any ground for his intended challenge and further held that in any event there was no error of law, procedural unfairness or Wednesbury unreasonableness in the Board’s Decision.

12.  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.  No notice of appeal was filed by the applicant within the 14‑day period.

13.  On 27 February 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was nine months late with his intended appeal.

14.  On 23 March 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.

THIS APPLICATION

15.  By a summons and a supporting affirmation (attaching a written statement) filed on 3 April 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons and supporting affirmation, the applicant stated that he understood he had a good ground of appeal but failed to specify what that ground was.  In his supporting affirmation, he stated that the Judge’s decisions were reached unfairly without allowing him an opportunity to clarify his case and his country’s situation.

16.  In his written statement, he repeated that his life would be in danger if refouled and that internal relocation would be infeasible.  He alleged that there were corruption problems in Vietnam and that the Immigration Department failed to consider various legal provisions. However, those allegations are all general in nature without specific particulars.

DISCUSSION

17.  Following the approach 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.

18.  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.

19.  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].

20.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v 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)]).

21.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

22.  In our view, the applicant’s delay of nine months is very substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

23.  Further, there is also no substance in the applicant’s complaints. His contentions are all general and bare assertions without any specific particulars or evidence in support.  His complaints mainly focus on the Board’s Decision and he fails to point out how the Deputy Judge had erred in reaching his decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Although he claims he has a good ground of appeal, he fails to specify what that said ground is.  Also, he already had ample opportunities before this court and the Judge to present his case.  There is no substance in his bare assertions.  His allegations simply do not constitute proper grounds of appeal.

24.  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.  The re-application for extension of time to appeal under the summons filed on 3 April 2023 is dismissed.

25.  For completeness, given that we have dismissed the appeal on merits, but not based on the Request for Dismissal of Appeal, it is unnecessary for us to deal with the Request for Dismissal of Appeal.  In the premises, we will make no order under the summons dated 27 February 2024 seeking to withdraw it.