RE NGUYEN VAN HIEN

CAMP 38/2023, [2024] HKCA 807

On Appeal From [2022] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2340 OF 2018)

____________________

____________________

____________________

DECISION

____________________

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

1.  On 19 January 2024, this Court handed down decision ([2024] HKCA 57) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge KW Lung given on 19 May 2022 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 4 March 2024, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

3.  Having considered the applicant’s notice of motion, and affirmation, 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 decision.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by around 19 days.  The applicant did not explain in the supporting affirmation his delay, but simply said that he believed the merits of the appeal justified allowing the appeal out of time.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.  The notice of motion stated the following in summary :

1)  Our ruling was unsatisfactory;

2)  The applicant cannot return to Vietnam because if he does he will be tortured and even killed;

3)  The applicant cannot relocate to another part of his home country because his health is not good and he will face difficulties if he returns;

4)  The applicant cannot relocate because his creditors have a nationwide network and can locate him; and

5)  The Director did not consider his human rights under the law.

9.  In the applicant’s supporting affirmation, he stated that the decision of the Court was reached unfairly without allowing him the opportunity to clarify his case.  He further stated that a good ground of appeal was not necessarily considered at leave stage.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

CAMP 38/2023, [2024] HKCA 57

On Appeal From [2022] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2340 OF 2018)

________________________

________________________

________________________

DECISION

________________________

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

1) Renewed application for extension of time to appeal

1.  On 25 October 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 2340/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 12 October 2018 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 9 August 2016 and 27 February 2017 rejecting his non-refoulement claim. Deputy High Court Judge KW Lung refused to grant leave on 19 May 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 2 June 2022). Being out of time for over three months, the applicant took out an application on 7 October 2022 before the Judge requesting an extension of time to appeal. The Judge on 3 November 2022 rejected the applicant’s application for extension of time to appeal.

3.  On 31 January 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  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 statement annexed 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

5.  Briefly stated, the applicant is a Vietnam national. He entered Hong Kong illegally from the Mainland on 5 June 2014. He raised his non-refoulement claim on 11 June 2014 alleging that he would be harmed or killed by his creditor Kiu since he could not repay a loan.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim. The Decision covered Article 3 of the Hong Kong Bill of Rights (‘BOR 3’) (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the Applicant’s right to life claim on 27 February 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4) The Board’s Decision

8.  An oral hearing was conducted by the Board on 12 June 2018. The Board dismissed the applicant’s appeal/petition, and affirmed the Director’s decisions. The Board held that there was an absence of evidence that the applicant suffered any severe form of torture as defined by law. The Board held that the matter between the applicant and Kiu was private in nature, and the state was not involved. There was no evidence that the local police will not assist the applicant. There was no evidence to suggest that despite the long lapse of time of over three years, Kiu would still be interested in harming the applicant.

5) Decisions of the Judge

9.  In his decision dated 19 May 2022, the Judge held that the applicant had provided no ground for seeking relief in Form 86 or affirmation, nor did she seek for an oral hearing. There was no error of law or procedural unfairness.

10.  In his decision dated 3 November 2022, the Judge held that the applicant failed to show that there is any realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

11.  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

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 19 May 2022. The deadline for the appeal was 2 June 2022. The applicant was over three months late (August summer holiday exclusive) when he filed his extension of time to appeal application on 7 October 2022. The applicant did not provide any proper explanation for the delay.

(2) Prospect of the intended appeal

14.  In the applicant’s summons, the applicant asked for leave to advance a new ground of appeal. The applicant’s affirmation stated that the decision below was reached unfairly without giving him any chance to clarify his case and the situation in his country. He stated this ground justified his application for extension of time to appeal. In the applicant’s statement, he repeated factual matters such as his life is in danger or that changing another location to live is not feasible for him but these are matters within the province of the Board. In the applicant’s statement that was annexed to his affirmation, the applicant repeated factual matters that are within the province of the Board.

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

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

17.  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

18.  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 31 January 2023.

Applicant, unrepresented, acting in person