RE NGUYEN THI LAN

CAMP 205/2024, [2025] HKCA 186

On intended appeal from [2023] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 205 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1217 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 31 October 2023[1] dismissing her application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  which rejected his no-refoulement claim.

3.  The applicant has filed an affirmation and lodged a statement in support of her application.   

4.  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 papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Vietnam aged 61.  She entered Hong Kong illegally and was arrested by the police on 10 August 2015.  She raised a non-refoulement claim based on fear of being harmed or killed by her deceased husband’s creditor due to her inability to repay her husband’s debt.  She claimed that she and her children had been assaulted by the creditor and his people and had also received death threats from them, and that the village commune officers took no action despite she had made a report of the assault.  The details of her claim were summarised in [6] of the Director’s decision. 

6.  By a decision dated 15 May 2021, the Director rejected the applicant’s claim under the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] ground.  

7.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing held on 22 February 2019.  By its decision dated 3 May 2019, the Board dismissed the appeal. 

8.  In gist, the Board had reservations about the credibility of the applicant’s evidence as there were a lot of inconsistencies in her claim.  The Board also considered that, even if the applicant’s claim of threats was accepted, given that she did not encounter the creditor and his people in the two years she stayed with her sister, the applicant would come to no harm if she avoided the creditor and relocated to other parts of the country.  Further, any ill-treatment by the creditor had not attained a minimum level of severity.  The Board additionally found that state protection and internal relocation options were reasonably available to the applicant, which would have reduced any risk of harm that she might face.  In conclusion, the Board held that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.   

9.  On 7 May 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.   Other than outlining the factual basis of her claim in her supporting affirmation, she did not provide any specific ground for seeking relief.   

10.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated October 2023, the Judge refused to give leave to apply for judicial review.  The Judge held that the applicant had provided no valid ground to challenge the Board’s decision and she failed to show that the intended judicial review had any realistic prospect of success.  

11.  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 decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 14 November 2023.

12.  By a summons filed on 20 November 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by decision handed down on 1 March 2024[6] refused the application. 

13.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we will take into account: (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 late by 6 days.  Although the applicant had not provided any explanation for the delay both in the application made to the Judge and in the present application, as the delay is not long, we will focus on the merits of the intended appeal.

15.  When 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].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 primary decision maker afresh as if it is a fresh application for judicial review.

16.  In her affirmation in support of the present application, the applicant complained that the Judge’s decision was made unfairly without allowing her an opportunity to clarify her case and the situation in her country.  

17.  In the Statement that was lodged together with the present summons, the applicant further stated that (a)  the creditors and gangsters in Vietnam are cruel and violent and her life would be seriously threatened or she might even be killed; (b)  internal relocation was not feasible as her health was not good, she will be disadvantaged in the labour market, and there is no guarantee that she can adapt to the new environment and make a living; (c)  with the nationwide network of the gangsters and the corrupt police in Vietnam, it is quite possible that the creditor and his people will locate the applicant even if she moves to a new place; and (d)  the Director has not considered her human right.

18.  We are of the view that the matters stated in the applicant’s affirmation and the Statement do not constitute viable arguments in support of the intended appeal.  Firstly, under Order 53 rule 3(3)  of the Rules of the High Court, the court may determine an application for leave to apply for judicial review without a hearing unless a hearing is requested in the notice of application.  Given that the applicant did not request an oral hearing in the Form 86, or provide any specific ground for seeking relief, the Judge was justified in not listing the application for an oral hearing.  There is no error of law or procedural unfairness.  Secondly, as the Board had found the applicant’s claim incredible and the applicant had not identified any error in the Board’s decision, there is no factual basis to support her assertion that she will face harm or danger in her home country.  

19.  In the circumstances, the applicant has failed to show that his intended appeal has any merit or reasonable prospect of success.  It would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 28 October 2024.