RE NGUYEN THI DUNG

CAMP 297/2021

[2021] HKCA 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 297 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1441 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

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

1)  Renewed application for extension of time to appeal

1.  On 23 July 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 13 July 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’)  dated 24 June 2016 and the Director’s Further Decision dated 19 September 2017 rejecting her non-refoulement claim.  The application was brought within time.

2.  In his decision of 30 March 2021, Deputy High Court Judge C P Pang refused to grant leave to the applicant 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 by nine days, the applicant took out an application on 22 April 2021 before Deputy High Court Judge P Li requesting an extension of time to appeal. Judge P Li on 21 July 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.  On 28 July 2021, the applicant filed the present summons within time 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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  Briefly stated, the applicant is a Vietnam national.  She entered Hong Kong illegally from Mainland China in May 2015.  The applicant raised her non-refoulement claim on 17 July 2015 and 12 August 2015 on her fear that she would be harmed or killed by her creditors and her ex-husband.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 24 June 2016.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

8.  The Director decided against the applicant’s right to life claim on 19 September 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

9.  The applicant appealed against the Director’s Decisions to the Board on 8 July 2016.  An oral hearing was conducted on 18 December 2017.  The Board dismissed the applicant’s appeal on 13 July 2018 and the Director’s Decision and Director’s Further Decision were confirmed. The Board did not accept the applicant’s case of the loan.  The Board found the applicant evasive about what had allegedly happened between her and her husband.  It did not accept the applicant’s case that she was forced to transport dangerous drugs for the creditors.  It did not accept the applicant’s story that she was beaten and raped by the creditors.

5)  Decisions of Deputy Judge Pang

10.  In his decision dated 30 March 2021, Judge Pang held that the applicant did not disclose any grounds which show that the Board had erred.   

11.  In his decision dated 21 July 2021, Judge P Li held that the applicant could have made enquiry with the Court to find out time limit for the appeal.  

6)  Legal principles

12.  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

13.  The applicant was nine days late in filing her appeal.  We will focus on the merits of the intended appeal.

(2)  Prospect of the intended appeal

14.  The applicant stated in her summons and affirmation that she did not have the means to seek legal advice.  She stated that good ground of appeal was not necessarily considered at applying for leave stage.  She stated that she had good merits in her case.

15.  The present summons for a renewed application for extension of time to appeal was filed on 28 July 2021 within time.

16.  In the applicant’s present summons and affirmation, the applicant stated again that she did not have money to seek legal advice and could not access the High Court Centre for Unrepresented Litigants, or that she had good ground of appeal.

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

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

19.  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

20.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 28 July 2021.