RE LE THI ANH

CAMP 23/2022, [2024] HKCA 374

On Appeal From [2023] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 23 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2827 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 14 December 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 (Yuen and Au JJA) judgment of 10 February 2023 (“the Judgment”) ([2023] HKCA 121).  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’s (“the Judge”) dated 10 September 2021, by which the Judge dismissed her application for leave to apply for judicial review ([2021] HKCFI 2608).

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 10 March 2023.  Accordingly, the applicant was late for over nine months 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 filed on 14 December 2023, she reiterated that her life would be seriously threatened as the creditors and gangsters might harm or kill her.  She further claimed that as she was not an active person, internal relocation would not be feasible.  She alleged that the Immigration Department failed to consider her human rights under various legislations but failed to give any further elaboration or specific particulars.  In her supporting affirmation dated 14 December 2023, she only vaguely stated that the Judgment was unfair without allowing her an opportunity to clarify her case and situation in her country and that she understood that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.  However, she did not specify what that said ground was.

7.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

8.  In our view, the applicant’s application is devoid of merit.  At the outset, her delay of over nine months in taking out this application is extremely substantial and she fails to give any reason, let alone good reason, to explain her delay.  More importantly, she fails to give any proper ground of appeal or identify any specific error in the Judgment.  Her allegations are all general, vague and bare without any specific particulars or evidence in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  Her allegation that she was not given the opportunity to clarify her case is also misplaced.  The applicant already had ample opportunities to clarify her case and country situation before the Board, the Judge and this court.  Even now, she fails to point out with specific particulars how she is prejudiced and what further clarifications she has other than those submissions she already made.  Clearly, her assertions do not constitute proper grounds of appeal and lack basis.

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

10.  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.

11.  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.

CAMP 23/2022

[2023] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 23 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2827 OF 2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  On 10 September 2021, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for judicial review concerning her non-refoulement claim (“the JR Decision”) and dismissed her leave application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 14 December 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 7 January 2022.

3.  On 18 January 2022, the applicant filed her summons in CAMP 23/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 18 January 2022, the applicant lodged her written submissions on 26 January 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a Vietnamese national. She entered Hong Kong illegally on 9 May 2016.  On 10 May 2016, she surrendered to the Immigration Department and lodged her non-refoulement claim alleging that if refouled, she would be harmed or even killed by her creditor and his associates who were triad gang members.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 2608).

7.  By a Notice of Decision dated 10 November 2016, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 10 September 2018 and by its decision dated 3 December 2018, the Board dismissed the appeal for the reasons set out at [52] to [84] of its decision and confirmed the Director’s decision.  The Board did not reject the applicant’s evidence on the loan, and the various incidents of assault inflicted by the creditors on her and her husband between May 2015 to February 2016 for their failure to repay the loan.  However, the applicant’s problem is private and personal in nature without any state involvement, and the nature and extent of injury sustained by the applicants did not attain the minimum level of severity. The Board did not see any substantial ground to believe that the applicant would be subject to real and personal risk of harm to life if refouled.  Relevant Country of origin information (“COI”) suggested that there is reasonable state protection and in any event, internal relocation is a viable option.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 10 December 2018, the applicant filed a Form No 86 to apply for leave to judicially review the Board’s decision.  In her supporting affirmation, she did not advance any ground for relief save for saying that she would be harmed or killed by the creditor if refouled as she was unable to repay her debt.

The JR Decision

10.  The applicant did not request for an oral hearing and the application was disposed of on paper.  After due consideration of the Board’s decision, the Judge refused to grant leave to apply for judicial review for the reasons set out in [12] - [16] of the JR Decision:

“DISCUSSION

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 applicant’s reason in support of her application does not assist her as it is inconsistent with the Board’s findings.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision.  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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 14 December 2021 for an extension of time to appeal.  That was dismissed by the Judge on 7 January 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by more than 2.5 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained in her affirmation dated 14 December 2021 (“the Affirmation”) in support of her application that she did not know that there was a deadline for filing an appeal against the JR Decision.  Further, she needed time to analyse the JR Decision and to seek assistance from her friend to proceed with the appeal.  It is trite that ignorance of law and legal procedure is not an excuse for delay and we do not accept the applicant’s explanation as a good reason for her delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant stated in the Affirmation that the JR Decision was reached unfairly without allowing her an opportunity to clarify her case and the situation in her home country.  The Judge, after reviewing the applicant’s case, found that the applicant had not raised any viable ground to show that she has any realistic prospect of success in her intended appeal, nor has she set out any reasons to show that any error in the JR Decision.  The Judge did not find any realistic prospect in her intended appeal and dismissed her application.[5]

16.  In her summons and supporting affirmation filed with this Court, she repeated the grounds set out in the Affirmation.  She also sought leave to advance “a new sole ground of appeal” which however she did not set out.

17.  In her written submissions lodged with this Court, she reiterated the factual background of her claim and the procedural background in pursuing her non-refoulement claim.  She quoted passages from ST v Director of Immigration^[6][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  She complained that the Board had acted in a procedurally unfair manner without properly assessing her credibility.  She urged the Court of Appeal to give her a chance to seek justice and to allow her application.

18.  The applicant’s complaint that the JR Decision was reached unfairly is a general assertion without any elaboration or specifics and it is no more than her disagreement with the JR Decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder[2019] HKCA 20; Re Salim Ahmed[2020] HKCA 244.

19.  Her further complaint that the Judge did not allow her to clarify her case and the situation of her country also cannot stand.  It is trite that the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and (on rehearing) the Board and assessment of evidence, COI materials and risk of harm are primarily within the province of the Director and the Board.  The applicant had confirmed at the hearing before the Board that she would adopt her earlier statements and the bundle of documents submitted to the Board and she had nothing further to add to her case.[7]

20.  The applicant’s case had been clearly set out in the Board’s decision followed by the Board’s findings and analysis.  We agree with the Judge that there is no error of law or procedural unfairness or other irregularities in the Board’s decision.

21.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and we find nothing amiss in the JR Decision.

22.  As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 January 2022.