RE TRAN THI DAN

CAMP 118/2022

[2023] HKCA 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1398 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 17 January 2023, the applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s judgment of 2 December 2022 (“the Judgment”)  ([2022] HKCA 1775). 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 Deputy Judge”)  dated 7 April 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 846).

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.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 30 December 2022.  Accordingly, the applicant was late for over two weeks in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although 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 asserted that if refouled, her life would be seriously threatened or subjected to death risk as the gangsters in Vietnam are cruel and violent.  She also contended that internal relocation would not be feasible as her health is not good and she is not an active person.  She further asserted that it would be quite possible for her creditor and the gangsters to find out her new residence given their nationwide social network with corrupted officials.  She further contended that the Immigration Department failed to consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

7.  In her supporting affirmation filed on 17 January 2023, the applicant contended that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case and situation in her country.  She also asserted that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and that merits of such ground constitute sufficient reason to justify the Court to exercise its discretion to allow this appeal out of time. However, the applicant failed to point out or give any particulars as to what the alleged ground of appeal was.

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 30 January 2023.  In those submissions, she repeated the procedural history of her non-refoulement claim.  She also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board had acted in a procedurally unfair manner without properly assessing her credibility.  She also 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.  She then repeated those matters as stated in her Notice of Motion.  It is noted that her submissions are all general propositions and the applicant failed to show specifically how they are relevant to her case.

9.  At the outset, the applicant’s delay of over two weeks was substantial and she failed to give any reason, let alone good reason for her delay.  More importantly, the contents raised in her Notice of Motion, supporting affirmation and written submissions are all general, bare and vague without any specific particulars.  She also failed to identify any specific error in the Judgment with particulars.  Clearly, her arguments do not constitute viable grounds of appeal and her intended appeal is a non-starter.

10.  In any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily 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].

11.  Moreover, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has 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.

13.  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 is dismissed.

The applicant acting in person

CAMP 118/2022

[2022] HKCA 1775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1398 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 14 December 2021 refusing to grant an extension of time to appeal against the Judge’s decision dated 7 April 2021, in which the Judge refused leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 13 July 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 14 July 2016 and 23 March 2017 (“the Director’s Decisions”) by which the applicant’s non-refoulement claim was refused.

Background

2.  The applicant is a national of Vietnam.  She arrived in Hong Kong illegally on 21 August 2014.  She surrendered to the Immigration Department on 25 August 2014.  On the same day, the applicant lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by her creditor due to her inability to repay a loan.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 14 July 2016 and 23 March 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR2 risk^[4] and the BOR3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 29 December 2017, the Board dismissed the appeal on 13 July 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s claims, which it did not find to be credible or established on the evidence before it.  In any event, the option of internal relocation within Vietnam, such as Ho Chi Minh City, was held to be open to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 16 July 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In her supporting affirmation, she repeated that she could be seriously harmed by her creditor and his subordinates.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] ‑ [17] of the CALL‑1 Form:

"12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’

14. The Board had rejected her evidence on the facts.  She therefore has no factual basis in support of her claim.  Her reasons in support of this application do not assist her application.

15. The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.< The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in her Form 86 was at No 23, Hong King Street, Yuen Long (“the Yuen Long Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Yuen Long Address on 7 April 2021. This letter was not returned undelivered.

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 7 April 2021.

10.  The applicant took out a summons in the Court of First Instance on 19 November 2021 seeking extension of time to appeal, in which her address was also stated to be the Yuen Long Address.  She stated in her supporting affirmation that she did not understand English, and that she was unaware of a deadline for applying for leave to appeal.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 14 December 2021[6].

12.  By a summons filed on 20 April 2022, the applicant in effect renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated that she sought leave to appeal out of time against the Judge’s decision dated “14 December 202[1]”, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 7 April 2021.  Although the application purported to seek leave to appeal against the decision dated 14 December 2021, we shall treat it as a renewed application for an extension of time against the substantive decision of 7 April 2021, by which leave for judicial review was refused.

13.  In her supporting affirmation filed on the same date, the applicant contended that the decision made by the “High Court” was reached unfairly without allowing her an opportunity to clarify her case.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submission with the court.  She is thus deemed to have abandoned her right to rely on written submissions.

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

16.  The applicant did not offer any good explanation for her delay in making her application for extension of time whether before the court below or before this court.  The CALL-1 Form was sent to her at her stated address and was not returned undelivered.  In the circumstances, we are not satisfied that the delay has been properly explained, and are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

19.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

20.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

21.  In any event, we do not consider the applicant’s complaint that she was not afforded an opportunity to present her case persuasive, given that she has filed evidence, such as the affirmation dated 16 July 2018 in support of the Form 86, in which she was able to set out her case and which had been placed before the Judge for consideration.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 20 April 2022 is accordingly dismissed.