RE BUI THI HOA

CAMP 308/2023, [2024] HKCA 115

On Appeal From [2023] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 308 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 482 OF 2023)

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DECISION

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

1)  Renewed application for extension of time to appeal

1.  On 28 March 2023, the applicant issued her application for leave for judicial review by Form 86 in HCAL 482/2023.  The applicant’s intended judicial review was against the Immigration Department’s Notice of Decision dated 26 July 2022 which dismissed the applicant’s application for making a subsequent claim for non-refoulement. The Director had previously on 21 December 2017 refused the applicant’s claim for non-refoulement protection on all applicable grounds.  Deputy High Court Judge Bruno Chan refused to grant extension of time for leave to apply for judicial review and dismissed the application on 14 June 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 28 June 2023).  Being out of time for around three weeks, the applicant took out an application on 19 July 2023 before the Judge requesting an extension of time to appeal.  The Judge on 31 August 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 13 September 2023, the applicant filed the present summons for leave to appeal against the decision of the Judge dated 31 August 2023.  We will treat the summons as a renewed 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 submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  The applicant is a Vietnam national.  According to the applicant, she left Vietnam for the Mainland in December 2015.  She then entered Hong Kong through Shenzhen illegally.  The applicant alleged that if she returns to Vietnam she would be harmed or killed by a creditor over unpaid debts.  She raised a non-refoulement claim in May 2017.  On 21 December 2017, by a notice of decision, the Director refused the applicant’s claim on all applicable grounds.  The applicant then appealed/petitioned against the notice of decision to the Torture Claims Appeal Board (‘Board’), and the Board also dismissed the appeal/petition on 12 October 2018.  On 31 October 2018, the applicant was repatriated.  However, some three years later on 16 February 2022, the applicant entered Hong Kong illegally again and was arrested.  On 5 March 2022, the applicant made a subsequent claim to the Immigration Department on the basis of fear of harm from her creditors again.  The Director required her to provide further information in which the applicant eventually did.  On 26 July 2022, the Director refused the applicant’s subsequent claim for non-refoulement.  The applicant then filed her Form 86 in the High Court on 28 March 2023 out of time.

3)  The Director’s Decision

6.  The Director decided against the applicants’ non-refoulement claim on 21 December 2017.  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)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board dismissed the applicant’s appeal against the Director’s Decision on 12 October 2018 (‘the Board’s Decision’).  In the Board’s Decision, the Board held that it proceeded to deal with the applicant’s appeal on all applicable grounds as she failed to attend the hearing without explanation.  It held that the problem the applicant faced was that it was purely a private money lending matter.  Avoidance of loan was not a Convention reason for non-refoulement protection.  Vietnam government had reasonable protection available to the applicant.  The moneylenders only exerted verbal threats against the applicant and had never hurt the applicant or her family members.  There was no genuine and substantial risk of harm if the applicant was refouled.  There was no evidence to show that the moneylenders had any connection with the state.  There was no evidence that the applicant was targeted by the Vietnam government.  

5)  The Director’s Subsequent Decision

8.  Based on the evidence that the applicant submitted in support of her subsequent non-refoulement claim, the Director held on 26 July 2022 that in any event, the nature of the applicant’s problem was still a private dispute and it was the same as the previous claim.  Details and particulars regarding the loan was also lacking.  No fresh information was provided that could in any way support the case that there was any significant change of circumstances required to make a subsequent claim under section 37 ZO of the Immigration Ordinance (Cap. 115).

6)  Decisions of the Judge

9.  In his decision dated 14 June 2023, the Judge held that the applicant failed to put forward any proper grounds for the intended challenge in either his Form 86 or affirmation, nor was there any request for oral hearing.  There was no error of law or procedural unfairness.  The applicant was also over four months late in her Form 86 application for which the applicant provided no explanation for the delay, as the decision was sent to her at Lo Wu Correctional Institute where she was detained at the time on the same day.

10.  In his decision dated 31 August 2023, the Judge held that the applicant was three weeks late from making an application for appeal against the Judge’s decision.  The applicant’s explanation for the delay that she received the Court’s decision late had only the applicant to blame, as the applicant failed to update the Court her latest address after she was released from Castle Peak Bay Immigration Centre.  The applicant was unable to put forth any valid ground of appeal to challenge the Judge’s decision.  The application for extension of time to appeal was dismissed. 

7)  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.

8)  Analysis

(1)  Length of delay and reasons for the delay

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

13.  The applicant was three weeks late from appealing against the Judge’s decision dated 14 June 2023.  She has provided no good explanation for the delay. 

14.  The present summons for a renewed application for extension of time to appeal was filed on 13 September 2023.

(2)  Prospect of the intended appeal

15.  In the applicant’s affirmation in support of her summons, the applicant alleged that she could not find legal assistance, or that a good ground of appeal was not necessarily considered at this stage, or that there were merits to her case, when no particulars on any of these allegations were provided.  In the applicant’s written submissions, the applicant repeated the factual background of her case and procedural matters.  She referred to general non-refoulement principles.

16.  Under Order 53, rule 4(1)  of the Rules of High Court, the applicant had three months to take out an application in the High Court for judicial review from the date of the Director’s Subsequent Decision. 

17.  The Director’s Subsequent Decision was handed down on 26 July 2022.  The deadline for the appeal was 25 November 2022 since August 2022 was Court vacation.  The applicant was over four months late when she filed her extension of time for leave for judicial review application on 28 March 2023.  No reasons for the delay was provided. 

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

19.  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.

9)  Disposition

20.  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 13 September 2023.