RE VU THI HUONG

CAMP 68/2022, [2023] HKCA 1369

On Appeal From [2021] HKCFI 3857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1475 OF 2021)

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D E C I S I O N

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

1.  On 17 October 2022, this Court handed down decision ([2022] HKCA 1531) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge KW Lung given on 29 December 2021 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 16 February 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

3.  Having considered the applicant’s notice of motion, and affirmation, 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 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by over three months.  The applicant did not explain in the notice of motion or supporting affirmation her delay.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.  The notice of motion stated that the judgment of the Court was unsatisfactory and the Immigration Department did not consider human rights.  The applicant stated factual and procedural matters that have been previously dealt with by the Board.  In her supporting affirmation, the applicant again made bare statements that a good ground of appeal was not necessarily considered at the leave stage and that there were merits to the case but without giving details as to what those good grounds or merits were.

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, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person

CAMP 68/2022

[2022] HKCA 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 68 OF 2022

(ON APPEAL FROM HCAL NO. 1475 OF 2021)

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____________________

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D E C I S I O N

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

I.Renewed application for extension of time to appeal

1.  On 22 October 2021, the applicant issued her application for leave for judicial review by Form 86.  The date of the Form 86 was 30 September 2021 but it was filed on 22 October 2021. The applicant’s intended judicial review was against 1) the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’) dated 9 September 2021 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 6 November 2020 rejecting her non‑refoulement claim and 2) the decision of the Director. 

2.  In his decision of 29 December 2021, Deputy High Court Judge K W Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 18 January 2022 before the Judge requesting an extension of time to appeal.  The Judge on 15 February 2022 rejected the applicant’s application.   

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 24 February 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals on 24 February 2022 and 11 March 2022, the applicant was required to provide written submissions to the Court by 19 April 2022.  The applicant has failed to do so, and pursuant to paragraph 7 of the same directions, the applicant is now deemed to have abandoned her right to rely on written submissions, and her notice of appeal will be dealt with on paper.

II.  Factual background

6.  The applicant is a national of Vietnam and illegally entered Hong Kong on 4 March 2020 and was arrested by the police three days thereafter.  She lodged her non‑refoulement claim on 14 April 2020 on the basis that she would be harmed or killed by her creditor if she is returned to Vietnam as she was unable to repay an outstanding loan. 

7.  The details of the applicant’s claim have been summarized by the Judge at [4] to [5] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 6 November 2020.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s decision to the Board and attended an oral hearing on 7 September 2021 before the Board, where she gave oral evidence.  The Board in essence found that the applicant was not credible and her evidence unreliable. There were various inconsistencies in the applicant’s evidence such as the identities of the pimps and the factual accounts of her escape from the brothel in Vietnam.  In the circumstances, the Board found the applicant’s intention to seek non‑refoulement protection in Hong Kong to be suspicious.  In any event, the applicant failed to establish that she would face any real risk under the various heads in the future if she was refouled to Vietnam.  The Board dismissed the applicant’s claim on all applicable grounds.

V. Decisions of the Judge

10.  The applicant did not provide any grounds in support of her application for judicial review and in her supporting affidavit, she simply stated that she did not agree with the Board’s decision and repeated being in danger if she is returned to Vietnam. In his decision dated 29 December 2021, the Judge held that the applicant did not submit any valid grounds to challenge the Board’s decision.  He did not find any error of law nor procedural unfairness in the decision of the Board.  He further held that the findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.  As the applicant failed to show any realistic prospect of success, the Judge therefore refused to grant leave to apply for judicial review.

11.  In his decision dated 15 February 2022, the Judge held that the applicant did not raise any viable ground to show that she has any realistic prospect of success in her intended appeal. 

VI. Legal principles

12.  In considering whether to extend time for 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 extension of time was granted.

VII.   Analysis

1)  Length of delay and reasons for the delay

13.  The applicant was late by about six days when she filed her application for extension of time to appeal.  We shall instead focus on the merits of her application.

2)  Prospect of the intended appeal

14.  In the applicant’s present summons (together with a statement) and affirmation, the applicant explained about the delay.  She repeated that her life is in danger if she is returned to Vietnam and further complained her lack of understanding of English or Chinese. She also raised her dissatisfaction with the decision of the Board. 

15.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

16.  In our view, the applicant has not identified any proper grounds of appeal or errors committed by the Judge. 

VIII.  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 24 February 2022.