RE PHAM THI DINH

CAMP 525/2022, [2024] HKCA 212

On Appeal From [2021] HKCFI 2067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 525 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 382 OF 2021)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

THE PRESENT APPLICATION

1.  Before the court is the applicant’s application by summons filed herein on 8 December 2022 (“Summons”) for an extension of time to appeal against the decision given by Deputy High Court Judge K W Lung (“Judge”) on 11 August 2022, by which the Judge refused to extend time (“EoT Decision”) for the applicant to appeal against his decision dated 23 July 2021 declining leave to the applicant to apply for judicial review (“JR Leave Decision”) for the reasons set out in the Form CALL-1 of the same date ([2021] HKCFI 2067) (“Form CALL-1”).

2.  Although the Summons identified the EoT Decision as the decision for which leave to appeal out of time was sought, we shall treat it as a renewed application for an extension of time to appeal against the substantive JR Leave Decision.

3.  The intended application for judicial review sought to quash the decision (“Director’s Decision”) given by the Director of Immigration (“Director”) by a notice of decision dated 9 March 2021, refusing the applicant’s request to make a second non-refoulement claim (“Intended Subsequent NRF Claim”) under s 37ZO of the Immigration Ordinance (Cap 115) (“Section”).

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Previous claim for non-refoulement protection and its disposal

4.  The applicant, a national of Vietnam, first entered Hong Kong illegally on 10 April 2015.  She surrendered to the Immigration Department on 2 June 2015.  On 30 June 2015, she first raised a non-refoulement claim (“Previous NRF Claim”) based on a fear of being harmed or killed by her creditor and her associates.

5.  While in Hong Kong, the applicant met a man (whom she had not identified) in about May 2016 and gave birth to a son (named PHAM, Thanh Dat) by this unidentified man in Hong Kong in February 2017.  Thereafter, in January 2018, the applicant added her son as a claimant under the Previous NRF Claim.

6.  By a notice of decision dated 19 March 2018, the Director rejected the Previous NRF Claim by both the applicant and her son on all applicable grounds for non-refoulement protection, i.e. the torture risk[1], the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4] (“Director’s Previous Decision”).

7.  The applicant appealed against the Director’s Previous Decision to the Torture Claims Appeal Board (“Board”). 

8.  However, before the appeal was heard, the applicant had applied to the Board to withdraw the same.  In the Notice for Withdrawal filed by the applicant on 7 May 2019, she acknowledged that she understood the withdrawal of her appeal to be a “final disposal” of her case.  The reason for withdrawal given was that her problem had been resolved and it had become “safe” for her to return to Vietnam.  However, the applicant did not provide any particulars of the facts and circumstances leading to her changed assessment of the risk of harm underlying the Previous NRF Claim. 

9.  By a decision dated 10 May 2019, the Board ordered the withdrawal of the applicant’s appeal.

10.  The applicant and her son were voluntarily removed to Vietnam on 5 September 2019.

Request for permission to make the Intended Subsequent NRF Claim

11.  The applicant entered Hong Kong, again illegally, on 22 January 2020.  She was arrested by the police on 12 January 2021.

12.  By a letter to the Director dated 5 February 2021, the applicant sought to make another claim for non-refoulement protection under the Section based on the same fear of being harmed or killed by the same creditor and her associates for non-payment by the applicant of the same indebtedness.

13.  The Section prevents a person who has previously made a torture claim from subsequently making another such claim unless he provides sufficient evidence in writing to satisfy an immigration officer that (1) there has been a “significant change of circumstances” since the previous claim was finally determined or withdrawn; and (2) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a “realistic prospect of success”.  In deciding whether or not a person may make a subsequent claim, an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Board in relation to the previous torture claim.

14.  In proof of the change of circumstances required for the lodgment of the Intended Subsequent NRF Claim, by a letter dated 4 March 2021 from the applicant’s solicitors (namely, Chaudhry Solicitors) to the Director, the applicant claimed that after her return to Vietnam in September 2019, she was attacked in December 2019 by her creditor and her associates who almost killed the applicant.  According to the applicant, the police had been of no assistance to her.   

Director’s Decision

15.  Considering the materials that the applicant had submitted in support of the Previous NRF Claim and her aforesaid more recent assertions, the Director found no significant change of circumstances that would give the Intended Subsequent NRF Claim a realistic prospect of success. 

16.  Accordingly, by the Director’s Decision, the applicant’s request to make the Intended Subsequent NRF Claim was refused.

Application for leave for judicial review and the Judge’s Decision

17.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) and a supporting affirmation both filed on 18 March 2021 under HCAL 382/2021, the applicant sought leave to apply for judicial review of the Director’s Decision (“JR Leave Application”) on grounds summarised by the Judge at [13] of the Form CALL-1 as follows:

“(1) the Director’s Decision is not reasonable or fair (as required by Wednesbury test) because:

i. he did not consider that the applicant must be protected from extra-judicial killings if she is deported to her country;

ii he did not give the applicant sufficient time to arrange relevant evidence for her claim;

iii. he did not consider state acquiescence in this case as police in Vietnam had not provided reasonable protection for the applicant;

iv. he had given insufficient consideration to the country of origin information that hold in favour of the applicant’s argument that state protection is not available to her.

(2) the Director has failed to attain the high standard of fairness required by the Wednesbury test in the Decision.”

18.  After summarising the facts and background of the case and giving due consideration to the Director’s Decision, the Judge refused to grant leave for judicial review for the reasons set out in [14] to [18] of the Form CALL-1:

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

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

‘13.… …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.’

16.  Those grounds in paragraph 13 do not assist her for the reasons below:

(1)  Ground (1) boils down to state protection as the applicant alleged that she was nearly killed by her creditor when she returned to Vietnam voluntarily in 2019.  She complained to police but the police paid no heed to her complaint.  She was legally represented.  Her lawyer was aware that the burden is on her to prove state acquiescence - Section 37 ZO (2) of the Ordinance.  Her evidence of one single incident is not sufficient to establish state acquiescence.  It is proper for the Director to resort to the COI materials.  To say that the Director had paid not sufficient consideration to those materials in favour of the applicant’s case is only the applicant’s opinion without any evidence in support of it.  This ground fails.

(2)  Ground (2) is not supported by any evidence.  It is therefore a comment or the applicant’s opinion only.  This ground fails too.

(3)  Even if Grounds (1) and (2) were established, the applicant has the option of internal relocation, which she had proved by her own evidence.  She had stayed in the upper village for three years without any interference from the creditor.  The Court of Appeal in TK v Michael Jenkins Esq. v. Director of Immigration[2013] HKC, 526, CA [32 & 33] held that she should not be eligible for non-refoulement protection if internal relocation is available to her.

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

18.  There is no evidence that shows that the applicant has any reasonable chance of success in her intended judicial review.”

19.  Before we leave the JR Leave Decision for the time being, the following is worthy of note: (1) the applicant had, in the Form 86, requested that an oral hearing be fixed for the determination of the JR Leave Application; (2) notwithstanding such express request, the Judge made the JR Leave Decision without first giving the applicant an oral hearing; and (3) the Judge had regrettably been mistaken that the applicant had not asked for an oral hearing of the JR Leave Application when she had in fact done so expressly in the Form 86, as stated in [3] of the Form CALL-1.

MUCH-DELAYED ATTEMPT TO APPEAL AGAINST THE JR LEAVE DECISION

Length of delay

20.  The applicant had 14 days to appeal against the JR Leave Decision, which time expired on 6 August 2021.

21.  The applicant failed to file any notice of appeal on or before 6 August 2021.

22.  Then, on 7 July 2022 (which was 335 days after the JR Leave Decision), the applicant issued a summons in the proceedings below asking for an extension of time to appeal against the JR Leave Decision, which application was dismissed by the Judge by the EoT Decision.

23.  A delay of 335 days is, on any view, significant and excessive.

Explanation for the delay

24.  In her supporting affirmation filed in the proceedings below on 7 July 2022, the applicant claimed that she only became aware of the JR Leave Decision upon a reminder by an immigration officer.

25.  In this connection, the applicant’s last known address at the time of the JR Leave Decision was the Tai Lam Centre for Women (“Centre”).  According to the court’s record, a copy of the Form CALL-1 and a sealed copy of the Judge’s order were sent by post to the applicant at the Centre on 23 July 2021, which was not returned undelivered.

26.  The address given by the applicant in the said summons taken out by her in the Court of First Instance on 7 July 2022 was 232 Yu Chau Street, Sham Shui Po, Kowloon.

27.  One would have expected the Centre to return the correspondence from the court if the applicant was no longer detained there.  The inference to be drawn is that the applicant did receive the letter from the court at the Centre.

28.  In any event, the burden must be on the applicant to update the court’s record of the address at which she can be found or reached.

29.  We do not propose to waste time on further examining the credibility of the applicant’s said explanation for her delay which would depend on when she was released from the Centre, which is not apparent on the material presently available to the court.

30.  For the following reasons, we are of the view that the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

Merits

Only proposed ground of appeal

31.  In her supporting affirmation filed herein on 8 December 2022, the applicant contended that the Judge reached the JR Leave Decision unfairly without affording her an opportunity to clarify her case.

32.  In a “Statement” filed herein on the same date (without leave of the court), the applicant merely reiterated the dangers she may face if she were refouled to Vietnam.

33.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 22 December 2022.  The applicant is therefore debarred from lodging and relying upon any written submissions.

The applicant’s right to an oral hearing of the JR Leave Application

34.  As noted in [19] above, (1) the applicant had, in the Form 86, requested that an oral hearing be fixed for the determination of the JR Leave Application; (2) notwithstanding such express request, the Judge made the JR Leave Decision without first giving the applicant an oral hearing; and (3) the Judge mistakenly belief that the applicant had not asked for an oral hearing of the JR Leave Application when she had in fact done so expressly in the Form 86.

35.  Order 53 rule 3 (3) of the Rules of the High Court (Cap 4A) (“Rule”)[5] provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

36.  Despite the applicant’s express request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief, the JR Leave Application had in fact not been listed or fixed for hearing.

37.  The Judge, purportedly invoking his discretionary and case management powers, determined the JR Leave Application on paper.

38.  Applying this court’s earlier decisions in Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; and Re Pervin Jahanara [2023] HKCA 1064 at [20], by reason of the clear wording of the Rule and the applicant’s express request for an oral hearing, it is not open for the Judge, nor could he invoke the discretionary powers of the court, to determine the JR Leave Application on paper. 

39.  It is therefore arguable that the Judge had erred in law and in fact in disposing of the JR Leave Application without an oral hearing.

Hearing on 16 January 2024

40.  Due to such special circumstance, notwithstanding this court’s practice to determine applications of this kind (such as the present renewed application for extension of time to appeal) on paper, this court has on its own motion directed that a hearing be fixed on 16 January 2024 in order to give the applicant an opportunity to present (1) the oral submission which she would have made to the Judge in the court below had a hearing for the determination of the JR Leave Application been fixed and (2) the oral submission, if any, in support of the present renewed application for leave to appeal out of time.

41.  To make up for the problematic manner in which the Judge disposed of the JR Leave Application, this court will, in addition to the determination of the present application for extension of time to appeal, exercise afresh the court’s discretion with respect to the JR Leave Application by its own examination and scrutiny of the Director’s Decision to determine whether leave to apply for judicial review of such decision should have been granted to the applicant by the Judge.

No oral submission by the applicant

42.  We heard the Summons on 16 January 2024.

43.  The applicant appeared in person.  She was provided with language assistance by an English/Vietnamese interpreter.

44.  Despite her complaint about being deprived of an oral hearing of the JR Leave Application, the applicant confirmed at the hearing before this court that she had nothing to add to the material already before the court. 

45.  The proper and reasonable inference to be drawn from such conduct by the applicant is that she would have had no oral submission to advance even if a hearing had been fixed before the Judge prior to the making of the JR Leave Decision.  The lack of an oral hearing before the Judge is thus entirely academic and is nothing but an excuse deployed by the applicant to spin out the proceedings arising from her quest to remain in Hong Kong.

Our own scrutiny of the Director’s Decision

46.  Further, as stated above, we have ourselves subjected the Director’s Decision to anxious scrutiny.  We can find no reasonable basis for intervention by the court.  The applicant has certainly not condescended to any or any sufficient particulars, whether in the Form 86 or otherwise, as to the basis on which the Director can be said to have acted unlawfully or procedurally unfairly in reaching his decision, or how such decision could be said to be Wednesbury unreasonable.

47.  The attack allegedly encountered by the applicant after her return to Vietnam in 2019 appears to us to have been nothing more than a bare representation by the applicant’s lawyers in a letter to the Director, presumably on instruction from the applicant: see paragraph 6 of the Director’s Decision.  The Director considered the facts and circumstances of the case (including the material generated by the Previous NRF Claim) in the round, and concluded that there was no significant change of circumstances that warranted permission to the applicant to make a subsequent non-refoulement claim under the Section (for instance, the option of internal relocation within Vietnam was still available to the applicant as noted in paragraph 9 of the Director’s Decision). 

48.  In the premises, in exercising afresh the court’s discretion, we have come to the same view that the applicant had failed to satisfy the relatively high threshold required for the making of the Intended Subsequent NRF Claim under the Section.  Hence, the JR Leave Application would in any event be hopeless and was rightly dismissed by the Judge.

DISPOSITION

49.  It follows that the intended appeal against the JR Leave Decision has no prospect of success.  This court will not grant an extension of time for a hopeless appeal.

50.  The Summons is accordingly dismissed.