RE BUI MANH CUONG

CAMP 28/2024, [2024] HKCA 986

On Appeal From [2021] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 22 OF 2021)

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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 7 January 2021, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 22/2021 out of time. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 28 June 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 25 July 2017 rejecting his non-refoulement claim.

2.  Under Order 53, rule 4(1) of the Rules of the High Court, the applicant had three months from the date of the Board’s Decision (28 June 2018) to take out an application for leave for judicial review. The applicant was out of time for over two years. Deputy High Court Judge Bruno Chan (‘the Judge’) refused to grant extension of time and dismissed the application for leave to apply for judicial review on 23 June 2021.

3.  The applicant by summons issued on 5 August 2021 sought an extension of time to appeal against the Judge’s decision. In his decision dated 26 January 2022, the Judge held that the applicant failed to put forth any proper or valid grounds of appeal. There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused[1] .

4.  On 8 February 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  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 written statement attached to his affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

6.  Briefly stated, the applicant is a national of Vietnam. He entered into Hong Kong illegally in August 2015 and was arrested. In September 2015, he was released on recognizance. In August 2016, the applicant was arrested, convicted and sentenced for using a forged identity card and taking up illegal employment in Hong Kong without approval. In August 2017, the applicant was released on recognizance[2].

7.  The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by his creditor Hung because he cannot repay a loan that he borrowed together with his business partner.[3]

8.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3) The Director’s Decisions

9.  The Director decided against the applicant’s non-refoulement claim on 25 July 2017. 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 (‘the Director’s Decision’)[4].

10.  On 18 May 2020, the applicant raised a subsequent claim for non-refoulement protection before the Director, which was refused on 11 September 2020 as the Director found that there was no significant change of circumstance which allowed for the granting of the application.

4) The Board’s Decision

11.  The applicant appealed against the Director’s Decision of 25 July 2017 to the Torture Claims Appeal Board (‘the Board’)[5]. After a hearing held on 9 April 2018, the Board dismissed the applicant’s appeal on 28 June 2018 (‘the Board’s Decision’).

12.  The Board’s finding is summarized in the decision of the Judge at [9].

5) Decision of the Judge

13.  In his decision dated 23 June 2021, the Judge held that the applicant did not put forward any proper ground for the intended judicial review challenge, and in the absence of any error of law or procedural unfairness there was no merit in the intended application[6].

6) Legal principles

14.  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

15.  Under Order 53, rule 4(1) of the Rules of High Court, the applicant had three months to take out an application for judicial review from the date of the Board’s Decision.

16.  The Board’s Decision was dated 28 June 2018. The deadline for applying for leave to apply for judicial review was 27 September 2018. The applicant was over two years late when he took out judicial review application on 7 January 2021. No reason for the delay was given[7].

(2) Prospect of the intended appeal

17.  In the applicant’s present summons, he stated that he would advance a new ground of appeal without stating what such ground was. The applicant in his affirmation simply stated that the Judge’s decision in (Form CALL-1) was unfair without explaining what the unfairness was. Attached to his affirmation is a 5-page written submission, the points in gist being that the applicant complained that he did not receive either legal or language assistance, such as the decisions were not read back to him, or that he was ‘unable to get legal assistance of any kind’.

18.  It is factually incorrect that the applicant was unable to receive legal assistance of any kind as the applicant was represented by duty lawyer before the Director[8]. It is trite law that there is no absolute right to free legal representation at all stages of proceedings: Re Zunariyah, [2018] HKCA 14. As for language assistance, high standards of fairness do not entail interpretation service to be made available at any time the applicant desires. It is further noted that the court documents that the applicant provided were written in English indicating either that the applicant is familiar with English language or that he had means and access to such language assistance as he needed: Re Gurnishan Singh, [2018] HKCA 704, at [13].

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

20.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time to apply for leave for judicial review and dismissed the application.

21.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

22.  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 8 February 2024.

23.  On 13 September 2024, the Court was notified by the Director that the applicant has been removed from Hong Kong. We will send a copy of this decision and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.