RE LE THI HONG

CAMP 148/2021

[2022] HKCA 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 671 OF 2018)

____________________

____________________

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J U D G M E N T

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

1.  On 20 April 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Barma and Au JJA) judgment of 4 March 2022 (“the Judgment”) ([2022] HKCA 342). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 9 September 2020, refusing to grant the applicant extension of time and dismissing her application for leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2240).

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 to consider 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.  Pursuant to section 24(2) of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 1 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID‑19 Pandemic) from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was eight days late in taking out her application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“1. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal; and

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.” (sic)

7.  In her supporting affirmation filed on 20 April 2022, the applicant contended that she did not have financial means to obtain concrete legal advice regarding the procedure of appeal and could not approach the High Court’s Centre for unrepresented litigants to find out how to appeal.  She also contended that she received the Judgment around 8 ‑ 10 March 2022 but soon thereafter, the Court was closed because of the pandemic.  When the Court resumed working, she “felt down at home” and had to stay in bed and could not walk properly for one week before she filed her supporting affirmation.  She further contended that she understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.”

8.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions in support of her application.

9.  At the outset, although the applicant’s delay of eight days was not substantial, it is noted that she did not provide any evidence in support of her delay or medical evidence to support her contention that she could not walk properly.

10.  More importantly, her allegations are wholly without substance.  The matters raised in her Notice of Motion and supporting affirmation are all general, vague and bare allegations without specifics or particulars. As such, they simply do not constitute viable grounds of appeal and her intended appeal must fail on this basis alone.

11.  Further, none of the arguments raised in her Notice of Motion were argued before the Deputy Judge or this Court in her earlier reapplication for extension of time to appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, as observed by the Deputy Judge at [16] of the Leave Decision, there was no error of law or procedural unfairness in the decisions of the Board or the Director, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  We see no basis to interfere with the Leave Decision and her contentions must fail.

12.  Even taking her case at its highest, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, she had failed 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.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 20 April 2022 is dismissed.

CAMP 148/2021

[2022] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 671 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  By a summons dated 7 May 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 27 April 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 1051) (“EOT Decision”) against the Deputy Judge’s earlier order dated 9 September 2020, whereby the Deputy Judge refused to grant extension of time to the applicant to apply for judicial review and dismissed her application for leave to apply for judicial review ([2020] HKCFI 2240) (“Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 8 January 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 3 January 2017, rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 15 August 2015.  On 20 August 2015, the applicant surrendered herself to the Immigration Department and lodged a non‑refoulement claim on the basis that if refouled, she would be harmed or killed by her creditor for failing to repay her loan.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 3 January 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4].

6.  The applicant appealed against the Director’s Decisions to the Board on 16 January 2017.  An oral hearing was scheduled to be held before the Board on 24 November 2017 which the applicant failed to attend and gave no explanation for her absence[5].  The Board found that her dispute with her creditor was a personal monetary dispute and there was no evidence of any real intention of her creditor to harm or kill her.  Having assessed the evidence, the Board also considered that state protection and internal relocation would be available to her.  Accordingly, the applicant failed to establish her claim on all applicable grounds and the Board dismissed her appeal and confirmed the Director’s Decision.

The Leave Decision

7.  On 18 April 2018, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  No ground for seeking relief was stated in her Form 86.  In her affirmation, she only stated she would be killed by her creditor if returned to her home country without putting forward any proper ground of review for her intended challenge. As she did not request for an oral hearing, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review for the following reasons:

“9.       On 18 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that she would be killed by her creditor if returned to her home country but without putting forward any proper grounds for her intended challenge, nor did she request any oral hearing for her application.

10.       By then she was however out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial relief 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.

11.       As the last day of the three-month period for her to file her Form 86 fell on 8 April 2018, the Applicant was therefore some 10 days late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.       In the Applicant’s case, a delay of 10 days may not be regarded as significant, for which she did not provide any explanation, but given the relatively short delay, I propose to focus on the merits, if any, of her intended application.  

13.       As noted above, the Applicant however has not put forward any proper ground for her intended challenge.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any basis or merits in her intended application.

14.       As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

15.       In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.       In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.       For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason to extend time for her late application, I refuse to do so and accordingly dismiss her leave application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order 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.

10.  On 17 November 2020, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was almost two months late with her intended appeal.

11.  The applicant appeared in person at the hearing of the EOT Summons before the Deputy Judge on 14 April 2021.  A Vietnamese interpreter was present to provide language assistance.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge considered the applicant’s delay as substantial, for which the applicant explained that she did not have financial means to seek legal assistance in interpreting the Leave Decision to her as she could not read English.  When she managed to find assistance to explain the Leave Decision to her, she was already out of time. The Deputy Judge considered that the applicant failed to provide any good reason for her substantial delay and in the absence of any error in the Leave Decision being clearly and properly identified by the applicant, there was no prospect of success in her intended appeal.  It would thus be futile to extend time for a hopeless appeal.  Accordingly, the EOT Summons was dismissed.

The Present Application

13.  By a summons and supporting affirmation dated 7 May 2021, the applicant applied for leave to appeal against the EOT Decision to this Court.  She failed to provide any ground in her summons.  In her supporting affirmation, she only stated:

“I did not have money to seek advice on the procedure, and I could not approach the High Court’s centre for unrepresented litigants to find out how to appeal.” (sic)

14.  In her written submissions lodged on 22 June 2021, the applicant again repeated the alleged factual basis of her non-refoulement claim and cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that proposition that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She further referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  However, the applicant did not show specifically how these general propositions are relevant to her case.  She also did not identify any error in the Leave Decision.

Discussion

15.  Following the approach this Court has adopted 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.

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif[2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of almost two months to be very substantial and the applicant has failed to provide any cogent explanation for the delay.  Although she said she did not receive the Leave Decision on time, she failed to provide any specific particulars or details as to why that was the case or any evidence in support.

18.  As the applicant failed to provide any cogent explanation for her delay, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at [15]; Re Ansar Muhammad[2018] HKCA 227 at [8]; and Re MA[2019] HKCA 1020 at [18].

19.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration[2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: ReFarrukh Zaib[2020] HKCA 408 at [28].

20.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  Clearly, her arguments are not proper grounds of appeal.

21.  The arguments raised in her written submissions are also new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact‑and‑evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Gurpreet Singh[2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain those new grounds.  In any event, the applicant only repeated the alleged factual basis of her non-refoulement claim which are all general and bare assertions without any specific particulars or evidence in support.  They do not constitute viable grounds of appeal.

22.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily matters within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons filed on 7 May 2021 dismissed.