RE DINH THI QUYEN

CAMP 400/2021

[2021] HKCA 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 400 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2879 of 2018)

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JUDGMENT

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

1.  By summons filed on 21 September 2021, the applicant applied for leave to appeal the decision of Deputy High Court Judge Li made on 15 September 2021 refusing to extend the time for her appeal. Her intended appeal is against the decision of Deputy High Court Judge Lung (“the Judge”) dated 6 August 2020 refusing her application for leave to apply for judicial review. This is procedurally incorrect. What the applicant should have done is to renew her application to this Court for extension of time to appeal, pursuant to Order 59 rule 14(3) of the Rules of the High Court, Cap. 4A. We have accordingly treated the summons as a renewed application for extension of time to appeal.

2.  The applicant has filed an affirmation in support of her application. Despite directions given by the Registrar of Civil Appeals, she has not lodged any written submission.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) rejecting her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 47. She entered Hong Kong illegally and surrendered to the Immigration Department on 31 August 2015. She later raised a non-refoulement claim based on fear of being harmed or killed by her creditor because of her failure to repay her loan. The details of the applicant’s claim were set out in the Director decision at [6]. We will not repeat them.

6.  By his decision dated 28 March 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal against the Director’s decision to the Board was heard at an oral hearing held on 15 November 2018. By its decision dated 13 December 2018, the Board dismissed the appeal. The Board did not find the applicant’s evidence credible and did not accept she had borrowed a loan. The Board further considered that, even on the applicant’s evidence, there was no verbal or actual threat or harm carried out by the creditor. The Board also found that state protection and internal relocation alternatives are reasonably available to the applicant, which would reduce or negate any risk of harm that she may face. The Board concluded that the applicant failed to show that she qualified for non-refoulement protection on any of the appliable grounds.

8.  On 17 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions. The applicant did not provide any grounds for seeking relief. In her affirmation, she outlined her case and asked to be allowed to remain for a longer period.

9.  The Judge dealt with the application on paper. By a Form CALL-1 dated 6 August 2020[5], the Judge refused the application. In brief, the Judge found there was no error of law or procedural unfairness in the Board’s decision, and concluded that the intended judicial review has no reasonable prospect of success.

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020[6].

11.  By a summons filed on 14 October 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge Li dealt with the application on the paper. By his decision handed down on 15 September 2021, the Judge dismissed the application[7].

12.  On 21 September 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The applicant was one month late when she filed the 14 October 2020 summons, which is not insubstantial. Both in the application before the Judge and in this application, the applicant stated that she did not have financial means to obtain concrete legal advice regarding the appeal procedure and she thought she had lost the right to appeal and there was no further remedy. There is, however, no elaboration, as to how and when she came to appreciate she could appeal the Judge’s decision. Nevertheless, since the applicant acts in person, we are prepared to accept that the delay was occasioned by her ignorance about the court procedure. We would focus on the merits of the intended appeal.

15.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, no specific ground in support of the intended appeal was put forward in the summons or the affirmation.

18.  The applicant only stated in her affirmation that she understood there was a good ground of appeal that was not necessarily considered at the stage of applying for judicial review, and that she believed the merits of this ground constitute good reason for the court to exercise its discretion to allow the appeal to be made out of time. There is, however, no elaboration as to what in fact is the ground of appeal in question. This is hardly sufficient to amount to an arguable ground of appeal.

19.  We have in any event examined the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision. We agree that the intended judicial review has no reasonable prospect of success. The Judge was correct in refusing leave to apply for judicial review.

20.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 21 September 2021.

[1]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3]   This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]   This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5]   [2020] HKCFI 1866.

[6]   By reason of section 31(1) High Court Ordinance, Cap. 4, the month of August which is the summer vacation (see section 29(2) of High Court Ordinance and Order 64 rule 1(1) of the Rules of the High Court) is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal.

[7]   [2021] HKCFI 2689.