RE DO VAN CUONG

CAMP 138/2023, [2024] HKCA 549

On Appeal From [2024] HKCA 269

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)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  On 27 March 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 20 March 2024 (“the Judgment”) ([2024] HKCA 269). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 13 May 2022, by which the Judge dismissed his application for leave to apply for judicial review ([2022] HKCFI 1377).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice of considering this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant asserted that he would be killed, tortured or beaten by his creditors and the gangsters if refouled and that internal relocation would not be feasible given his health.  He further alleged that the Immigration Department failed to consider his human rights under various legislations but failed to elaborate on his assertions.  He further claimed that he was late in filing his appeal because he did not receive the refusal letter from the Court of First Instance and that he did not understand Chinese.  As such, it took him a long time to find a friend to help him translate the refusal letter and to file his appeal.

5.  Contrary to Practice Direction 2.1, the applicant failed to lodge his written submissions.

6.  At the outset, he gave no evidence in support for his alleged reason for delay or allegation that he failed to receive the court’s refusal letter.  According to the court’s record, the Leave Decision and sealed order were delivered to the applicant’s last known address without being returned as undelivered post.

7.  In our view, there is no merit in his application.  The matters raised in the Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  Furthermore, the applicant’s complaints are directed mainly at the Director’s and the Board’s Decisions.  He fails to give any specific particulars as to any errors in the Judgment.  Accordingly, his allegations do not constitute proper grounds of appeal and are in any event devoid of merit.

8.  Further and in any event, even taking them at their highest, the applicant’s allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.

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)

_______________

_______________

_______________

J U D G M E N T

_______________

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.