RE DANG THI MINH THU

CAMP 335/2022, [2024] HKCA 421

On Appeal From [2021] HKCFI 3399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 335 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 120 OF 2019)

________________________

________________________

________________________

DECISION

________________________

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

1.  On 25 April 2023, this Court handed down decision ([2023] HKCA 587)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 12 November 2021 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 19 May 2023, the applicant filed a notice of motion and supporting affirmation applying for leave to appeal this Court’s decision to the Court of Final Appeal.  The applicant has also lodged a written submission on 2 June 2023.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  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.

6.  In summary the applicant stated the following in the notice of motion :

1)  The Judges were wrong for not applying the principle of procedural unfairness to the Director’s decision; and

2)  The Judges were wrong for not applying the principle of irrationality to the Director’s decision.

7.  In summary the applicant stated the following in the supporting affirmation :

1)  The applicant was late submitting’ this form’ [which we understood to be her notice of appeal] was because all along she did not receive the High Court’s decision and had to go to court to search court file to get it;

2)  The applicant did not have concrete legal advice on the procedure to appeal;

3)  A good ground of appeal was not necessarily considered at the stage of her application for leave for judicial review; and

4)  The merits of this ground of appeal constitute sufficient reason justification for the Court to allow appeal out of time.

8.  In the applicant’s written submissions, she first stated some background information from paragraphs [1] to [9]. She then stated general non-refoulement legal principles without specifying how they relate to the particulars of her case.  They include the following :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable; and

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith.

9.  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.

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

11.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.

Applicant, unrepresented, acting in person

CAMP 335/2022, [2023] HKCA 587

On Appeal From [2021] HKCFI 3399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 335 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 120 OF 2019)

________________________

________________________

________________________

D E C I S I O N

________________________

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

I. Renewed application for extension of time to appeal

1.  On 14 January 2019, the applicant issued her application for leave to apply for judicial review by Form 86 against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’)  dated 7 January 2019.

2.  By a decision dated 12 November 2021 ([2021] HKCFI 3399)  (‘the Decision’), Deputy High Court Judge Bruno Chan : 1)  refused to grant the applicant leave to apply for judicial review; and 2)  dismissed her application.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A) (‘RHC’), the applicant had 14 days to appeal against the Decision (by 26 November 2021).  However, it was not until 15 December 2021 that the applicant took out a summons seeking extension of time to appeal.  The applicant was out of time for 19 days. By a decision dated 20 July 2022 ([2022] HKCFI 2096), the Judge refused the applicant’s application for extension of time to appeal.

4.  Under Order 59, rule 14(3)  of the RHC, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (by 27 July 2022). However, it was only by summons dated 5 September 2022 (‘the Summons’)  that the applicant renewed her application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 5 September 2022, the applicant was to lodge written submissions in support of her renewed application on or before 19 September 2022.  The applicant has lodged her written submissions as directed.

6.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

7.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 13 December 2015.  She surrendered herself to the Immigration Department on 15 December 2015.  She then made a non-refoulement claim.

8.  The basis of the applicant’s claim was that if she returned to Vietnam, she would be harmed or killed by her creditor over her unpaid debts.  It was said that in around 2013, she started a clothing retail business in her home district by borrowing a loan from a local loan shark.  However, as her business declined, she was unable to make the loan repayments.  She stayed at home, but her creditor sent debt collectors to her home to look for her, and when they could not find her, made threats against her and her family.  The applicant departed Vietnam for the Mainland in December 2015, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection.

III.  TheDirector’s Decision

9.  By a decision dated 3 January 2018, the Director of Immigration (‘the Director’)  rejected the applicant’s claim in respect of torture risk, risk relating to right to life under Article 2 of the Bill of Rights (‘HKBOR’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 HKBOR, and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.  The Director found the applicant’s claim unsubstantiated.  The Director also found that the risk of harm from her creditor upon refoulement was low, there would be state protection available to the applicant, and internal relocation was an option open to the applicant.

IV.  The Board’s Decision

10.  The applicant then appealed to the Board.  An oral hearing was held on 6 November 2018.  By a decision dated 7 January 2019, the Board dismissed the applicant’s appeal.  The Board found there to be inconsistencies and discrepancies in the applicant’s evidence as to her claim of fear of harm from her creditor.  Furthermore, given that this was a private dispute, there was state protection available, and internal relocation was also an option.

V.  The Judge’s Decision

11.  By the Decision, the Judge agreed with the reasoning of the Board.  The applicant has submitted no valid ground to challenge the Board’s decision.  There was no error of law or procedural unfairness in the Board’s decision.  Specifically, the applicant’s factual assertions, even if substantiated, only point to localized threats.  As it was not unreasonable or unsafe for the applicant to relocate to other parts of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong.

12.  The Judge hence refused to grant leave to the applicant to apply for judicial review and dismissed her application.

13.  By the decision dated 20 July 2022, the Judge found that the delay of three weeks in appealing is substantial, and the applicant has not provided any good or valid reason for her delay.  Furthermore, since the applicant has not identified any valid ground of appeal, it would be futile to extend time for her to appeal.

VI.  Legal principles

14.  In considering whether to extend time to 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 an extension of time is granted.

15.  See, e.g., Re Chauhan Manish[2023] HKCA 431 [15].

VII.  Analysis

1)  Length of delay and reasons for delay

16.  As noted above, the applicant was out of time for about three weeks in her attempt to appeal against the Decision.  The delay is not insignificant.

17.  In her affirmation dated 5 September 2022, the applicant says that the delay is attributable to the fact that some of the children residing nearby had taken the letter addressed to her enclosing the Decision, and it was only subsequently that the letter reached her hands.  She also says that she did not have the funds to access lawyers.

18.  We do not accept that to be a valid explanation for the lateness.  The assertion given by the applicant is generalized and no details are provided, for instance the precise date on which she first became aware of the Decision.  In any event, we will also examine the merits of the applicant’s intended appeal.

2)  Prospect of the intended appeal

19.  The applicant’s written submissions refer to the high standards of fairness required in the disposition of her non-refoulement claim.  We do not think that the applicant has a valid complaint in this regard.  At issue is whether the circumstances as described by the applicant were sufficient to substantiate the applicant’s non-refoulement claim.  Both the Board and the Judge held that it did not, since, among other reasons, it was only a private dispute without state involvement, that there was state protection available, and internal relocation was also an option.

20.  In other words, none of the materials put forward by the applicant disclose any valid ground of appeal.  The Judge has considered all the relevant matters, including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed her application.  We detect no error in the Judge’s analysis.

21.  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 reasonable prospect of success.

VIII.  Disposition

22.  The intended appeal is unarguable.  It would be futile to grant an extension of time to appeal in those circumstances.  Accordingly, we dismiss the Summons.

Applicant, unrepresented, acting in person