RE NGUYEN THI HONG

CAMP 521/2021

[2022] HKCA 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 521 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1117 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 27 July 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 judgment of 21 June 2022 (“the Judgment”) ([2022] HKCA 874). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”) dated 15 April 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 964).

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 19 July 2022.  The applicant was therefore late for eight days in making 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 essentially contended that if she returned to Vietnam, her life would be seriously threatened, and she would be tortured, beaten and probably killed because the creditors and gangsters there were different from those in Hong Kong, and most of them were cruel, violent and disregard the law.  She further asserted that it would be completely unfeasible for her to relocate to another location in Vietnam to avoid the pursuit of the creditors, as there would be too many difficulties and obstacles that she would have to face in the new location; and that it would be difficult for her to adapt and she would be at a disadvantageous position in the labour market given her health and that she was not an active person.  She also claimed that it would be possible for the creditor and gangster to find out her new residence as they had connections with corrupt people in the government and the police in Vietnam.  She then asserted that the Immigration Department did not 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, the applicant contended that the decision made by the High Court had been reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.  She further claimed 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 the merits of this alleged ground of appeal constituted sufficient reason and justification for the Court to exercise its discretion in allowing her appeal out of time.

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions in support of her present application on 9 August 2022.  In those submissions, she repeated the procedural history and factual basis 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 Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“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.  Although the applicant’s delay of 8 days is not insubstantial, for present purpose, we will focus on the merits of her application.  In our view, her intended appeal has no merit at all.

10.  At the outset, it is noted that the matters raised in her Notice of Motion, supporting affirmation and written submissions are essentially new and not argued at first instance or on appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed previously before it; nor 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].  She also did not specify what her alleged “good ground of appeal” as claimed in her supporting affirmation was.  Clearly, her contentions are not viable grounds of appeal.

11.  More importantly, her complaints mainly focused on the decisions of the Director of Immigration and the Board and did not identify with specific particulars how this Court had erred in the Judgment.  Plainly, her assertions are not proper grounds of appeal.

12.  In any event, general assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  She already had ample opportunities to present and clarify her case before this Court and the Court below.  It is also 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].

13.  Further, even considering the applicant’s case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

14.  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.

15.  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 27 July 2022 is dismissed.