RE NGUYEN THI UT

CAMP 597/2021, [2024] HKCA 228

On Appeal From [2021] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 597 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 775 OF 2021)

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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 28 December 2021, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 19 July 2021 whereby the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Application”)  ([2021] HKCFI 2060).  By a decision dated 15 November 2021, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision (“the EOT Decision”)  ([2021] HKCFI 3279).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 27 December 2018 (“the Board’s Decision”), refusing the appeal against the decision of the Director of Immigration (“the Director”)  dated 20 February 2017 rejecting 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 claimed that she entered Hong Kong illegally from Mainland China on 15 December 2015.  She was arrested by the police on 11 March 2016.  She committed several criminal offences and on 29 March 2016, she was convicted and sentenced to imprisonment for 15 months.  On 10 May 2016, she raised a non-refoulement claim by way of written representation on the basis that if refouled, she would be harmed or killed by her creditor from whom she had borrowed 300 million Vietnam currency for her poultry farm business in 2010 which she was unable to repay.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] 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].

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  An oral hearing was scheduled to be held before the Board on 10 October 2018, but the applicant failed to attend the same without giving any explanation for her absence.  The Board found that the applicant had failed to give evidence to explain the implausibility or incredibility found in the documents submitted as there was insufficient evidence available as to the details of her claim, such as relating to the alleged poultry business and the loan of a significant amount.  Having assessed the evidence available, the Board found that the applicant was not a credible witness and her account of events in support of her claim was rejected as untruthful.  Further and in any event, the Board considered the dispute between the applicant and her creditor was private in nature without any state involvement and that state protection and internal relocation would be available to her.  Accordingly, the Board considered that the applicant had failed to substantiate her claim on any of the applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 27 May 2021, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in her Form 86 or supporting affirmation.  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 [12] - [16] of the Leave Decision:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1). … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

14. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

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 25 October 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision and also sought leave to advance a new sole ground of appeal.  By then, she was over two months late with her intended appeal.  In her supporting affirmation, she claimed that she did not speak English or Chinese and did now know how to file an appeal.  She explained that she had to seek help from her friends with the intended appeal, but her friend used the wrong procedure.  She also claimed that the Leave Decision had been reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.

11.  By the EOT Decision, the Deputy Judge considered that the applicant failed to raise any viable ground to show that she has any realistic prospect of success in her intended appeal.  As such, the Deputy Judge dismissed her application for extension of time to appeal.

The Present Application

12.  By a summons filed together with a supporting affirmation and a statement on 28 December 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  In the summons, she requested for extension of time to appeal without providing any ground in support of her application.  She again asked for leave to be granted for her to advance “a new sole ground of appeal” without giving any particulars or elaboration.  In her supporting affirmation and statement, she simply repeated the same arguments about her illiteracy in English and Chinese, her need for help from her friends with the appeal as she did not know how to appeal, and that the Deputy Judge reaching the decision unfairly without giving her an opportunity to clarify her case and the situation in her country.  She also stated her problem with the creditor remained and her fear that she would be killed by the creditor if refouled.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 28 December 2021, the applicant lodged her written submissions on 5 January 2022.  In those submissions, the applicant repeated the factual background and procedural history of her non-refoulement claim.  The applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board had acted in a procedurally unfair manner without properly assessing her credibility.  She referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  In her submissions and also her statement, she further submitted 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.  However, it is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to her case.  More importantly, none of her submissions has identified any error in the Leave Decision.

Discussion

14.  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].

15.  We consider that the applicant’s delay for over two months was substantial and the applicant failed to give any cogent explanation for her delay.  Ignorance of the procedural rules is not a valid reason for her substantial delay: Re Gurung Min Bahadur [2018] HKCA 26 at [10].  As to her allegation about the lack of language assistance, we note that the applicant was able to file all her application documents with the Court in English, which shows that she has access to language assistance of her own if deemed necessary.  This 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].

16.  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].

17.  We are of the view that her intended appeal is wholly without merits.

18.  As a start, the applicant’s contention that the decision made by the Deputy Judge was unfair without allowing her an opportunity to clarify her case and the situation in her home country simply cannot stand.  The Deputy Judge decided to consider her leave application on paper as the applicant did not request for any oral hearing.  Accordingly, it is appropriate for the Deputy Judge to consider and dismiss her application for leave to apply judicial review on paper.  The applicant also had ample opportunities to present her case before the Deputy Judge but failed to give any viable ground in support of her application before the Deputy Judge.  In the premises, her contention is without substance and must fail.

19.  The applicant’s request for leave to advance “a new sole ground of appeal” must also be rejected, as she did not even specify what this “new sole ground of appeal” was.  In any event, it is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive and have not been canvassed at 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 Daljit Singh [2018] HKCA 32 at [10]; Re Qadir Sher [2018] HKCA 160 at [11]; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

20.  More importantly, her written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to her case.  She also failed to identify any error with specific particularity in the Leave Decision.  Accordingly, none of her submissions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  For the above reasons, the intended appeal 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 28 December 2021 is dismissed.