RE BUI THI DIEN

CAMP 61/2023, [2024] HKCA 227

On Appeal From [2022] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 61 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2620 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.  By a summons filed on 10 February 2023, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”)  dated 2 February 2023.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2023] HKCFI 238)  (“the EOT Decision”)  against his earlier order dated 15 July 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 2110)  (“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 9 November 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 8 December 2016, by which the Director rejected her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, 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 last entered Hong Kong illegally on 27 September 2015.  On 29 September 2015, she surrendered to the authorities.  By written representations respectively dated 22 December 2015 and 5 January 2016, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed and/or killed by her creditor owing to default in her loan repayment. Factual details of the applicant’s claim were summarised by the Deputy Judge at [6] - [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 torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that her claim failed on all applicable grounds.

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  On 6 August 2018, she attended an oral hearing before the Board.  By the Board’s Decision, her appeal was dismissed.  Having considered his evidence, the Board noted that the applicant’s dispute was private in nature and there was no evidence of state involvement or state acquiescence.  The Board also noted that her creditor did not cause any serious injuries to her or her family even though he had the opportunity to do so.  As such, the Board assessed her risk of being subjected to ill-treatment upon her return to Vietnam as low and she failed to substantiate her claim on all applicable grounds.

The Leave Decision

7.  On 21 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in her affirmation that she could not go back to Vietnam owing to her default in repayment and that she would be harmed or killed by her creditor.  As the applicant did not request 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] - [21] of the Leave Decision:

“19.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Vietnam.  

20.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  Despite some inconsistencies in her evidence, the Board accepted the bulk of her evidence and assessed her claim on the basis of the case she asserted, except for the issue of state protection.  In essence, the Board found that the ill-treatment she suffered did not attain the minimum level of severity; that the risk of harm she would face upon her return to Vietnam is low; and that state protection is available.  It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving her fears and risks.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

21.  For the above reasons, 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 23 November 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 almost four months late with her intended appeal.  In her summons and supporting affirmation, she gave no explanation for her delay and only asserted that she originally decided “to withdraw” her application but later changed her mind and contended that her life would still be in danger if refouled.

11.  By the EOT Decision, the Deputy Judge held that she gave no good reason for her delay.  Her conscious decision not to pursue her appeal initially could not constitute a reasonable explanation for the delay. The Deputy Judge further noted that she did not advance any specific ground for her intended appeal.  Accordingly, the Deputy Judge held that the applicant had no realistic prospect of success in her intended appeal and refused her application for extension of time to appeal.

The Present Application

12.  By summons and supporting affirmation (attaching a written statement)  all filed on 10 February 2023, the applicant applied for leave to appeal against the EOT Decision.  In the summons, the applicant only stated that she understood she had a good ground of appeal but failed to specify what the said ground was.  In her supporting affirmation, she stated that the court’s decisions were reached unfairly without allowing her an opportunity to clarify her case and her country’s situation.  In her written statement, she alleged that her life would be seriously threatened if refouled and that internal relocation would not be feasible as she was not an active person.  She further alleged that it would be dangerous for her to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with the corrupt people in the government and police.  The applicant further alleged that the Immigration Department failed to 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.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 10 February 2023, the applicant did not lodge any written submissions.

Discussion

14.  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.

15.  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].

16.  We consider that the applicant’s delay of almost four months was substantial and we agree with the Deputy Judge that the applicant had failed to give any reason, let alone 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].

17.  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 that 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].

18.  At the outset, the arguments raised in her summons, supporting affirmation and statement are new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  Although she alleged she had a good ground of appeal, she did not specify what that ground was.  Moreover, the complaints were all directed at the decisions of the Director and the Board and did not point out with specific particulars how the Deputy Judge had erred in the Leave Decision.  They therefore do not constitute proper grounds of appeal. The appeal must fail on this basis alone.

19.  For the above reasons, the intended appeal is a non-starter and 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 10 February 2023 is dismissed.