LUONG THI DAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1013/2017

[2019] HKCFI 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1013 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 3 May 2019 for appeal from my decision of 11 December 2018, refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  She did not do so.  She now requires leave to extend time to appeal against that order.  The applicant attended court in person and was assisted by an interpreter.

Procedural background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  She entered Hong Kong legally on 8 March 2005 from Vietnam and thereafter overstayed.  She was repatriated on 18 January 2006, but re‑entered illegally in February 2014.  She was not arrested until 9 January 2015.  She submitted a non‑refoulement claim form on 7 October 2015 and was interviewed by the Director of Immigration (“the Director”) on 3 December 2015.  The Director dismissed her claim under all heads, by Notice of Decision on 14 January 2016 and by Notice of Further Decision on 4 January 2017.  She appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard her on 24 August 2017.  The Adjudicator refused her appeal on 13 September 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  Her application for leave to apply for judicial review was refused on 11 December 2018.  She had 14 days from that date to appeal that decision which would have expired on 25 December 2018.  By way of summons dated 3 May 2019, she seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 15.  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for her delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  She claims she received the Order on time but as it was in English she initially only approached other Vietnamese refugees for assistance who also spoke no English.  Rather than raise the issue with Immigration staff when she reported under her recognizance, the applicant waited until a fellow Vietnamese refugee was able to inform her that her application had been refused.  After questioning by the court, the applicant suggested that she had raised the issue with Immigration staff who told her that she was out of time. After further questioning, the applicant said she had been told to come to Admiralty (the High Court) but had been told by staff that there was nothing she could do.  I do not believe any of these incidents happened or that she was told by High Court staff that there was nothing she could do.  The applicant also complains that it was incumbent upon the court to communicate with her in Vietnamese and to inform her of when and how to lodge an appeal. Not only is it the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner[1], but, having received it, it is the duty of the applicant to ensure that she acts upon it promptly.  She did not do so.  There are a number of avenues available for such help and this court does not accept that Immigration staff did not tell her about them when she reported.  This court also does not accept that the duty lawyer would not have assisted her when she reported to Shatin Magistrates’ Courts for her criminal proceedings.  The applicant has chosen to enter Hong Kong illegally twice, knowing that the official languages are Chinese and English.  There is no requirement for the courts of Hong Kong to translate judgments in any language other than the two official languages.  The consequences of any delay arising from failing to take swift action upon receipt of the Order of this court, will fall upon the litigant[2].

6.  Even if the court did accept the reasons given for the delay, which it does not, and the language difficulties faced by this applicant, the court is nevertheless required to examine whether there is any merit in the applicant’s appeal[3]. The applicant has no grounds of appeal and simply reiterated more than once that she had been told she could appeal.  If she were an immature or vulnerable applicant, she may have attracted the benefit of the doubt.  However, this lady is a mature woman who came to Hong Kong knowingly illegally twice.  She reacted to interpretation immediately and at length.  She is clearly not unintelligent and appears to be manipulating the system to its full extent.  Even if I had not come to this conclusion, there is nothing before the court to indicate any prospect of success let alone a reasonable prospect of success in the intended appeal.

7.  It must be emphasised that the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[4]. It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions or simply as a means to extend time in Hong Kong.  It should be an appeal from the decision of this court and applicants should look to draft grounds of appeal on that basis.  If they do not do so, they will not be successful.

Conclusion

8.  The applicant has now been in Hong Kong full time since 2014.  She has been interacting with various government agencies since that date and prior to that in 2005/6, when she was repatriated to her home country.  She made no complaint about her language difficulties in the proceedings below.  It is clear there is a considerable network of her fellow country men and women in Hong Kong and that she knew the general course of events and that the responsibility was hers to pursue her claim.

9.  In any event, I have considered her underlying application even though she is unable to advance any grounds of appeal.  Her underlying application has no merit as explained in the initial refusal of leave.  There were no grounds of review then either and none could be ascertained from the papers.  There was no complaint before the court as to the decision to refuse leave dated 11 December 2018.  The applicant merely wishes to appeal for the sake of it.  Having considered the length of delay, reasons for the delay and underlying merits of her application as well as lack of grounds for appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.  The applicant’s summons dated 3 May 2019 be dismissed.