RE NGUYEN THI CHUNG

CAMP 416/2021

[2021] HKCA 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 416 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2688 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 30 September 2021, the applicant applied for leave to appeal the decision of Deputy High Court Judge Lung (“the Judge”) made on 22 July 2021 refusing to extend the time for her to appeal the Judge’s decision dated 17 May 2021 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 for extension of time to appeal to this Court, 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 61.  In September 2001, she came to Hong Kong and was given permission to remain for 14 days as a visitor.  She overstayed and was repatriated to Vietnam in October 2004.  She later re-entered Hong Kong illegally and was arrested by the police on 27 September 2008.  A deportation order was made against her and she was repatriated to Vietnam on 8 October 2009.  She later entered Hong Kong illegally again and surrendered to the Immigration Department on 20 October 2014.  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 as well as her husband who is a heavy and abusive drinker.  The details of the applicant’s claim were set out in the Director decision at [8]. We will not repeat them.       

6.  By his decision dated 23 January 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 4 September 2017.  By its decision dated 18 October 2018, the Board dismissed the appeal.  Having regard to the unexplained inconsistencies in the core aspects of the claim, the implausibility of the circumstances she had described and overall immigration history, the Board was not satisfied that she was indebted to a moneylender or that she was a victim of domestic violence at the hands of her husband.  The Board found she has fabricated her evidence and rejected the basis of her claim.  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 concluded that the applicant failed to show that she qualified for non-refoulement protection on any of the appliable grounds.

8.  On 27 November 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.  She only stated in her affirmation that if she were refouled to Vietnam, she would face genuine and substantial risk of being tortured or killed by the moneylender and her husband.    

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 17 May 2021[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 31 May 2021.

11.  By a summons filed on 7 June 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers.  By his decision handed down on 22 July 2021, the Judge dismissed the application[6]. 

12.  On 30 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 week late when she filed the 7 June 2021 summons, which is not a substantial delay. In the application before the Judge, the applicant explained that her letter box was broken and the court’s letter was taken by her neighbour’s children by mistake, resulting in her receiving the Judge’s decision late.  In view of the minor delay, we are prepared to accept her explanation.

15.  In the affirmation in support of the present application, she also explained her delay in renewing her application to this court.[7]  She stated that she never received the court order and only became aware of it when she reported to the Immigration Department.  Given that her letter box was said to be broken, we are prepared to accept her explanation.  We would focus on the merits of the intended appeal.      

16.  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].

17.  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.

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

19.  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.       

20.  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.

21.  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 30 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] [2021] HKCFI 1316.

[6] [2021] HKCFI 1937.

[7] Under Order 59 rule 14(3) of the Rules of the High Court, the renewed application should be made within 7 days after the date of the refusal.  In this case, the 7-day’s period expired on 29 July 2021.