RE BUI QUY TAN

CAMP 105/2021

[2021] HKCA 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1853 OF 2018)

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_____________________

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J U D G M E N T

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

1.  On 30 August 2021, this court handed down our judgment ([2021] HKCA 1252) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 27 May 2020 refusing to extend the time for him to apply for judicial review in respect of his non‑refoulement claim.

2.  On 19 October 2021, the applicant filed a Notice of Motion together with an affirmation applying for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission.

3.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  The applicant’s Notice of Motion is out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 29 September 2021.

6.  Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

7.  In the present case, the applicant’s Notice of Motion is late by more than 2 weeks, which is not insubstantial.  The applicant explained in his affirmation that he did not understand English, was unaware of the time limit for making the application and required the assistance of his friends to prepare the appeal.

8.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  The Notice of Motion stated that: (1) the outcome of the application was unsatisfactory; (2) if the applicant returns to Vietnam, his life will be seriously threatened as his creditors are cruel and violent, have no regard for the law and will readily kill people out of anger; (3) the applicant would like to postpone the deportation as he has not yet agreed with his creditor on a repayment plan; and (4) the Director of Immigration did not consider the applicant’s human rights under the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap. 383 as well as the International Covenant on Economic, Social and Cultural Rights.

10.  The written submission: (1) gave an outline of the applicant’s claim and the procedural history; (2) quoted extensively from cases dealing with the high standard of fairness and Wednesbury unreasonableness; and (3) argued that high standard of fairness is required because the decision has the effect of finally disposing of the applicant’s claim making him liable to be repatriated, and that the Torture Claims Appeal Board had acted unfairly without properly assessing the applicant’s credibility.

11.  What was put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the applicant’s claim and do not involve any question of great general or public importance, as required by section 22(1)(b) of the Ordinance. As to the complaints made against the Director and the Board, they are in any event general assertions without supporting particulars or details.       

12.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

13.  As the intended appeal has no prospect of success, it would be futile to extend the time for the applicant to appeal.  Accordingly, we refuse to extend the time for the applicant to appeal to the Court of Final Appeal and dismiss the Notice of Motion.

CAMP 105/2021

[2021] HKCA 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1853 of 2018)

__________________________

__________________________

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 27 May 2020[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 9 February 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 8 February 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Vietnam aged 49.  He entered Hong Kong illegally and was arrested by police on 12 August 2015.  He raised a non-refoulement claim on 3 September 2015. 

6.  The applicant’s claim is based on his fear of being harmed or killed by a loan shark due to his inability to repay his loan.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 27 May 2020 at [5].  We will not repeat them.     

7.  By his decision dated 8 February 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 10 November 2017.  The applicant was absent at the hearing.  Having been satisfied that notice of the hearing had been duly given to the applicant, the Board proceeded to hear the appeal in the applicant’s absence.  By its decision dated 9 February 2018, the Board dismissed the appeal.  Primarily, the Board considered that, without further evidence from the applicant, it could not reach a finding that the applicant had borrowed money and defaulted in making repayment, or that he had been threatened or harmed by the loan shark and his associates.  The Board was not satisfied on the limited evidence available that the applicant has a real risk of being harmed, tortured, ill-treated or persecuted, and concluded that the claim failed on all applicable grounds.

9.  On 6 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Apart from reiterating the facts of his claim, he did not put forward any grounds for seeking relief.   

10.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose.  When the applicant filed his Form 86, it was nearly seven months after the Board’s decision.  He was accordingly nearly four months late.  

11.  The Judge refused to extend the time for the applicant to apply for leave to apply for judicial review and gave his reasons in [12] to [17] of the Form CALL-1 as follows:

“12. The applicant appeared before me. He confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. The interpreter of the Board had explained the Board’s Decision to him. He had no comments on the Board’s Decision.

13. The applicant’s application is late: date of the Board’s Decision being 9 February 2018 and the date of filing Form 86 being 6 September 2018, a delay of nearly four months. The Court has to consider whether time should be extended to him to proceed with this application by considering the merits of his intended application. Re Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, 23 July 2018, §28 and AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

14. The applicant explained that he had lost the court’s letter and he was not aware of the law on the time to appeal. I do not accept this explanation. This is obviously a very important matter for him. He was at liberty to make enquiry with the Duty Lawyer Scheme or the Registry of the High Court.

15. In Nupur Mst v Director of Immigration[2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

13.  By a summons filed on 19 February 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  By his decision handed down on 30 March 2021[6], the Judge refused the application.  On 8 April 2021, the applicant filed the present summons to appeal against the Judge’s decision of 30 March 2021.  This is not a correct step to take.  The proper procedure is to make a further application to this Court for extension of time to appeal the Judge’s decision of 27 May 2020.  We will treat the summons as a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

15.  When the applicant filed the 19 February 2021 summons, he was late by more than eight months, which is a serious delay.  He stated in his affirmation that he did not have money to seek advice on procedure and he could not approach the centre for unrepresented litigants in the High Court to find out how to appeal.  While we accept that he is unrepresented and may not be familiar with court procedure, we do not consider the applicant has satisfactorily explained the long delay in question. In the circumstances, the applicant is required to show that his intended appeal has a real prospect of success.    

16.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  The applicant has not provided any ground for his intended appeal.  He merely stated in his affirmation that: “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”      

19.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions and do not amount to proper grounds of appeal.

(2)  The focus of an appeal before the Court of Appeal is the correctness of the lower court’s decision.  The applicant, however, has not identified any error in the Judge’s decision not to extend the time for him to apply for judicial review.        

20.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge did not err in refusing to extend the time for applying for judicial review.       

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to extend time for applying for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  

22.  For the above reasons, we dismiss the applicant’s summons filed on 8 April 2021. 

[1][2020] HKCFI 940.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6][2021] HKCFI 728.