RE BUI THI LEN

CAMP 445/2021

[2022] HKCA 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 445 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1206 OF 2018)

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D E C I S I O N

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

I.  Renewed application for extension of time to appeal

1.  On 27 June 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 16 May 2018 dismissing her appeal against the decisions of the Director of Immigration (‘the Director’)  dated 1 September 2016 and 27 July 2017 rejecting her non-refoulement claim. 

2.  In his decision of 8 March 2021, Deputy High Court Judge K W Lung dismissed her application for leave to apply for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for over four months, the applicant took out an application on 2 August 2021 before the Judge requesting an extension of time to appeal.  The Judge on 30 August 2021 rejected the applicant’s application.  

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 7 September 2021).  On 8 October 2021, the applicant filed the present summons out of time by about one month to make a further application to this Court for extension of time to appeal. 

5.  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, statement, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is a Vietnam national.  She entered Hong Kong initially as a visitor and was allowed to stay till 18 December 2013 but overstayed.  The applicant raised her non-refoulement claim in April 2014 on her fear that she would be harmed or killed by Thang and Nhi (or their subordinates)  who are her creditors.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 1 September 2016.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).  The Director decided against the applicant’s right to life claim on 27 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board.  An oral hearing was conducted on 29 March 2018.  The Board dismissed the applicant’s appeal on 16 May 2018 and the Director’s Decision and the Director’s Further Decision were affirmed.  The Board held that the applicant’s account was untruthful.  It found the applicant’s account was unsubstantiated and unsatisfactory, and the discrepancies were not satisfactorily explained.  The Board did not accept that the applicant owed any money to her alleged lenders.  It did not accept the applicant ran any fish farming business.

5)  Decisions of the Judge

9.  In his decision dated 8 March 2021, the Judge held that the applicant’s purported grounds in her application were not helpful.  The Board rejected the applicant’s case on the facts.  There was no error of law or procedural unfairness.  

10.  In his decision dated 30 August 2021, the Judge held that the applicant had no reasonable prospect of success in her intended appeal. 

6)  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  The applicant was over four months late when she filed her application for extension of time to appeal on 2 August 2021.  The delay was substantial.  Due to the serious delay, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons, affirmation and statement, the applicant asserted that there was a new sole ground of appeal but without particularizing what that was.  She stated in her affirmation and statement that she did not understand English and yet her papers for the present application were written in English, indicating either that the applicant is familiar with English or she had means and access to such language assistance as needed: Gurnishan Singh [2018] HKCA 704 at [13].  In her written submissions, she repeated factual matters without pointing to any error of law.  She stated general non-refoulement principles without particularizing how they relate to her case.  As the Judge pointed out, there was no factual basis to support the applicant’s claim.

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

15.  The Judge has considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave to apply for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 8 October 2021.