RE NGO THI HONG

CAMP 474/2022, [2024] HKCA 1173

On Appeal From [2022] HKCFI 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 474 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 547 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1.  By a summons filed on 14 November 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”) dated 16 September 2022. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2795) (“the EOT Decision”) against his earlier order dated 12 May 2022 dismissing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 1353) (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 April 2020 (“the Board’s Decision”) refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 6 November 2017 rejecting her claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Vietnam. She claimed that she entered Hong Kong illegally on 12 July 2015. On 13 July 2015, she surrendered herself to the Immigration Department and lodged a non‑refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor Hung because she was unable to repay her loans borrowed to finance her business. Factual details of the applicant’s claim were summarised by the Deputy Judge at [7] ‑ [12] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including BOR2 risk[1], BOR3 risk[2], persecution risk[3] and torture risk[4].

6.  The applicant appealed against the Director’s Decision to the Board. On 27 March 2019, the applicant attended an oral hearing before the Board and gave evidence. On 3 April 2020, the Board dismissed her appeal and confirmed the Director’s Decision. In essence, the Board found that there were numerous inconsistencies and discrepancies in the applicant’s evidence, such as, on the borrowing notes in relation to the loans, the amount of monthly interest payment, the principal amount of the second loan, the year on which the applicant ceased to operate her business, her account of events on filing a police report, and the alleged injury inflicted by the creditor on her[5]. The Board found her evidence to be unreliable and incredible. In any event, the Board considered that the monetary dispute between the applicant and her creditor was private in nature without any state involvement[6], and that state protection and internal relocation would be available to the applicant upon refoulement[7]. Accordingly, the Board found that the applicant failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 26 February 2019, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision[8]. No ground of review was provided in the Form 86. In her supporting affirmation, the applicant merely repeated the factual basis of her non-refoulement claim. As the applicant did not request for any oral hearing, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [19] ‑ [20] of the Leave Decision in Chinese. In gist, the Deputy Judge found that there was no substance in the applicant’s complaint about the Board’s findings of facts, and that the Board was entitled to make findings of facts and draw inference of facts based on the available evidence as the primary decision-maker in the applicant’s claim. Having carefully reviewed the Board’s Decision and the relevant materials and evidence, the Deputy Judge considered that there was no error of law, Wednesbury unreasonableness or procedural unfairness in the Board’s Decision. Accordingly, leave to apply for judicial review was refused.

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 8 July 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, she was over six weeks late with her intended appeal. In her supporting affirmation, the applicant contended that she did not receive the Leave Decision from the High Court.

11.  By letter dated 27 July 2022, the Deputy Judge directed the applicant to file a statement by 10 August 2022 setting out, among other things, details relating to the Leave Decision being brought to the applicant’s attention, and her grounds of proposed appeal. She was advised that her summons would be determined on paper after 21 days of the directions, regardless of whether the directions given had been complied with. The applicant failed to comply with Deputy Judge’s directions or to give any response.

12.  By the EOT Decision, the Deputy Judge considered a delay of over six weeks as substantial and did not accept the applicant had provided any valid explanation for the delay. As the applicant had no arguable grounds of appeal and her intended appeal had no prospect of success, the Deputy Judge refused her application for extension of time to appeal.

The Present Application

13.  By a summons and a supporting affirmation both filed on 14 November 2022, the applicant applied for leave to appeal against the EOT Decision. In the summons, the applicant asked for leave to advance a new sole ground of appeal without giving any particulars.

14.  In her supporting affirmation, she 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 home country. She also asserted that the merits of this ground of appeal constitute sufficient reason to justify the court to exercise its discretion to allow this appeal out of time.

15.  In a “statement” lodged together with her summons and supporting affirmation, the applicant complained that both the Director’s Decision and the Board’s Decision were reached subjectively without proper evaluation of her evidence. She repeated that her life was threatened in Vietnam. She contended that it was completely impossible to gather evidence to substantiate her claim as she was not able to do so given her situation at that time and also, it would be against the whole regime of the Vietnam to do so. She further 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.

16.  Contrary to the directions made by the Registrar of Civil Appeals on 14 November 2022, the applicant failed to lodge any written submissions.

Discussion

17.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

18.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

19.  We consider that the applicant’s delay of over six weeks was substantial. We note from the court record that the Leave Decision was sent on the date of the Leave Decision to the applicant’s address stated in the Form 86 and her supporting affirmation filed on 26 February 2019 without being returned. We agree with the Deputy Judge that the applicant failed to give any good reason for her delay. As such, the court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

20.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  At the outset, her complaints in the “statement” are mainly directed at the Board and the Director. Further, all her complaints are all general and bare assertions without any specific particulars or evidence in support. They do not constitute proper grounds of appeal: Re Farrukh Zaib, supra, at [28]. The appeal must fail on this basis alone.

22.  Her complaint that the decision of the High Court was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country simply cannot stand. The Deputy Judge decided to consider her leave application on paper as the applicant did not request for any oral hearing. Accordingly, it was appropriate for the Deputy Judge to consider and dismiss her leave application on paper. Even in her application for extension of time, she was directed to provide further information to substantiate her time application, but she failed to provide any response. Her application for extension of time was determined on paper by the Deputy Judge accordingly. She already had ample opportunities to present and clarify her case before the court at different stages of the proceedings. In the premises, her complaint in this respect must fail.

23.  The applicant’s request for leave to advance “a new sole ground of appeal” must also be rejected, as she did not even specify what this “new sole ground of appeal” was. In any event, it is well established that this court will not generally entertain new arguments which are fact‑and‑evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].

24.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, country of origin information 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: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. We agree with the Deputy Judge in the Leave Decision that that Board was entitled to consider and assess the applicant’s evidence available to the Board in reaching its own findings of facts and assessing the applicant’s claim. As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board and we see no basis to interfere with the Leave Decision.

25.  For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 14 November 2022 is dismissed.

26.  This judgment is written in English as the applicant’s Summons filed on 14 November 2022, the affirmation and the Written Statement filed in support are all written in English.