RE VU THI LY

CAMP 374/2023, [2024] HKCA 833

On Appeal From [2023] HKCFI 2297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 374 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1131 OF 2019)

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DECISION

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

I. Renewed application for extension of time to appeal

1.  On 29 April 2019, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 1131/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 24 April 2019 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’)  dated 23 February 2018 rejecting her non-refoulement claim.  Deputy High Court Judge KW Lung refused to grant leave on 22 September 2023.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 6 October 2023).  Being out of time by three days, the applicant took out an application on 9 October 2023 before the Court requesting an extension of time to appeal.  Deputy High Court Judge KW Lung on 14 December 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 21 December 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

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

2)  Factual background

5.  Briefly stated, the applicant is a national of Vietnam.  She first arrived in the Mainland from Vietnam in October 2015.  In May 2016, she entered Hong Kong illegally via Shenzhen by hiding inside a lorry.  She raised a non-refoulement claim in May 2016[1].  It is noted that the Board stated that the applicant came to Hong Kong illegally by boat[2]. This is not a matter that affects the outcome of the case.

6.  The basis of the applicant’s non-refoulement claim is that she alleged that she would be harmed or killed by a number of creditors and their underlings.[3]

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 23 February 2018.  The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’)[4].

4)  The Board’s Decisions

8.  No oral hearing was conducted by the Board[5]. The Board dismissed the applicant’s appeal and the Director’s Decision was affirmed[6].  The Board held that according to the applicant’s own evidence, there were four times when the creditors confronted the applicant for repayment: once was an oral threat, another time it was a slap on her face, another time was vandalizing items in her store, and finally there were telephone or messages seeking for repayment.  For all of these incidents the applicant did not require hospitalization and she recovered on her own.  The applicant was not physically nor mentally affected by these incidents.  The incidents do not qualify for the minimum level of severity needed to establish a claim under BOR 3[7]. The dispute between the creditors and the applicant is private in nature and does not qualify under persecution risk[8].  The incidents do not qualify under torture risk, and there is no state actors that are involved[9].  Internal relocation is possible[10].

5)  Decisions of the Judge

9.  In his decision dated 22 September 2023, the Judge held that the applicant was unable to point out in her documents that there was any error in the Director’s Decision or the Board’s Decision.  There was no prospect of success in the intended challenge[11].

10.  In his decision dated 14 December 2023, the Judge held that the applicant was misconceived when she stated that a good ground of appeal need not be considered at the leave stage, as merits need to be assessed on the intended appeal.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.  There was no prospect of success in the intended appeal.  The application for extension of time for appeal was refused[12].

6)  Legal principles

11.  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

13.  The Form CALL-1 decision was handed down on 22 September 2023.  The deadline for the appeal was 6 October 2023.  The applicant was three days late when she filed her extension of time to appeal application on 9 October 2023.  No reason for the delay was given[13].

(2)  Prospect of the intended appeal

14.  In the applicant’s summons, the applicant asked for leave to appeal out of time.  The applicant in her affirmation stated that the Judge’s decision was unfair and that the Court did not allow her the opportunity to clarify her case.  She further stated that the merit of her case was sufficient to allow an appeal out of time.  Both of these points made are bare assertions without any particulars or specifics. 

15.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review and refused extension of time.

17.  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 prospect of success.

8)  Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 21 December 2023.