CACV 539/2021
[2022] HKCA 726
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 539 OF 2021
(ON APPEAL FROM HCAL NO. 1610 OF 2018)
________________________
________________________
Before: Hon Chu JA and ST Poon J in Court
Date of Judgment: 30 May 2022
________________
JUDGMENT
________________
Hon Chu JA giving the Judgment of the Court:
1. This is the applicant’s appeal against the decision of Deputy High Court Judge P Li (“the Judge”) given on 18 November 2021 refusing to extend the time for her to apply for judicial review and dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 December 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 May 2017 rejecting her non-refoulement claim.
2. The applicant’s appeal was scheduled to be heard on 28 March 2022. The applicant was directed to lodge her written skeleton argument by 28 February 2022 and further warned that if she failed to do so, she shall be deemed to have waived her right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 26 January 2022 and the Notice of Hearing dated 14 February 2022.
3. The applicant failed to lodge her skeleton argument by the stipulated time, the hearing date was accordingly vacated. We have proceeded to process this appeal on paper based on the available materials.
4. The applicant is a national of Vietnam. She entered Hong Kong illegally and was arrested by the police on 16 March 2015. She later raised a non-refoulement claim based on her fear of being harmed or killed by her creditor and his followers due to her failure to repay her loan. The applicant’s case was set out in detail in the Director’s decision at [6] and the Board’s decision at [18] to [32] and [44] to [62], and summarised by the Judge at [15] to [22] of the Form CALL-1 dated 18 November 2021, [2021] HKCFI 3424.
5. In gist, the applicant borrowed a sum of money for her business from a moneylender with a triad background. Her business later deteriorated and she defaulted on the monthly interest payments. Consequently, the moneylender twice came to her family with about ten people and threatened to kill her if she did not repay her loan. She tried to report to the police but was told it was a private matter that the police would not intervene. She ran away from home to avoid the moneylender and later decided to leave the country for Hong Kong out of fear for her personal safety.
6. By a Notice of Decision dated 12 May 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].
7. The applicant appealed the Director’s decision to the Board. The Board held an oral hearing on 2 November 2017, and by its decision dated 1 December 2017 dismissed the appeal. In short, the Board found the applicant was not a witness of truth and her claims were not credible, having regard to the discrepancies between her oral evidence and her non-refoulement claim form and the internal inconsistencies in her case. The Board did not accept she had made a loan and had been threatened due to her inability to make repayment. The Board found she would not face a real risk of harm or death if she returned to Vietnam, and considered the question of internal relocation did not arise for consideration. The Board concluded that the applicant failed to establish her entitlement under any of the applicable grounds.
8. Under Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The three-month’s period for the applicant to judicially review the Board’s decision expired on 2 March 2018.
9. On 13 August 2018, the applicant filed her Form 86 together with a supporting affirmation to seek leave to apply for judicial review against the decision of the Board. The Form 86 did not set out any ground for seeking relief. In the supporting affirmation, the applicant explained her delay in applying for judicial review on the ground that she did not know English or Chinese and she did not know what to do on receiving the Board’s decision. She further stated that her risk of being harmed still existed and that her creditor and his men could have inflicted more serious harm on her had they wanted to.
10. On 14 September 2018, the applicant applied by summons to amend the Form 86 to add her daughter, Doan Thi Hoai Anh, as the 2nd applicant. Her daughter was born out of wedlock in Hong Kong in 2016. The applicant made a non-refoulement claim on her daughter’s behalf, which was rejected by the Director on 19 February 2019. By letter dated 14 May 2019, the Court refused the applicant’s application to add her daughter as the 2nd applicant, and informed the applicant that she could file another Form 86 for her daughter in the event her appeal to the Board was refused. On 25 October 2019, the Board dismissed the appeal of the applicant’s daughter. Despite being reminded by the Court by letters and telephone calls (see [8] to [11] of the Form CALL-1), the applicant had not issued an application for leave to apply for judicial review for her daughter.
11. The Judge listed the applicant’s Form 86 application for an oral hearing on 20 August 2021. The applicant was absent at the hearing. The Judge was satisfied that the applicant should have notice of the hearing and proceeded to determine the application. By his decision of 18 November 2021, the Judge refused to extend the time for the applicant to apply for judicial review and refused the application for leave to apply for judicial review. The Judge gave his reasons at [30] to [35] of the Form CALL-1 as follows:
“30. The adjudicator had set out the legal principles. He had considered the evidence in detail. The inconsistencies set out above were material. The adjudicator was justified in rejecting the factual basis of her claim. I agree with the decision of the adjudicator. There is no error of law or procedure.
31. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success.
32. The applicant was out of time in filing the leave application by nearly 5½ months. She explained that she did not know Chinese and English. In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.
33. I do not accept her explanation for the delay in the leave application. She was able to process her claim before the Director and the TCAB. Her Form 86 and affirmation were written in English. She should be able to find language assistance.
34. The delay is substantial. Her explanation is not accepted. As analysed above, the intended judicial review is of no merit.
35. In the circumstances, there is no good reason for extending the time for the leave application. I also refuse leave for the intended judicial review.”
12. In the Notice of Appeal filed on 2 December 2021, the applicant stated that the gravity of her circumstances had not been considered or appreciated by the Director and the Board in determining her non-refoulement claim, and that she should be given an opportunity to plead her case properly.
13. What was stated in the Notice of Appeal do not constitute viable grounds of appeal. The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(2)].
14. In the present case, the applicant has not identified any error in the Judge’s decision and reasons. What she put forward as the grounds of appeal do not engage the Judge’s reasons for refusing to extend the time for her application.
15. Further, while the applicant complained that the Director and the Board had not considered or appreciated her situation, she had not pointed to any specific error in their assessments and findings. We have separately considered the papers and the decision of the Director and the Board. Like the Judge, we do not find any error of law, irrationality or procedural irregularity in their reasons and decisions. There is therefore no basis to interfere with the decision of the Board and the applicant’s intended judicial review has no prospect of success. The Judge is correct to refuse to extend the time for applying for judicial review, having regard to the substantial delay and the lack of merits of the applicant’s intended judicial review.
16. For the above reasons, the appeal has no merits. Accordingly, we dismiss the appeal.
(Carlye Chu)
Justice of Appeal | (S T Poon)
Judge of
Court of First Instance |
The applicant, unrepresented, acted in person.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights, Cap. 383.
[3] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.
[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.