PHAM THI LAN v. TORTURE CLAIMS APPEAL BOARD

CAMP 135/2025, [2025] HKCA 1056

On Appeal From [2025] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 135 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 191 OF 2020)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court)  :

1.  By a Summons filed on 23 July 2025 (“Summons”), the Applicant applies for an extension of time to appeal against the order (“Dismissal Order”)  of Deputy High Court Judge Michael Wong (“Judge”)  by which her application for leave to apply for judicial review (“Leave Application”)  against the decision of the Torture Claims Appeal Board (“Board”)  dated 13 December 2018 was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”)  to reject the Applicant’s non-refoulement claims.

2.  The Summons referred, erroneously, to another order of the Judge dated 15 July 2025, which was an order dismissing the Applicant’s application for extension of time to appeal against the Dismissal Order.  The Dismissal Order was made on 25 April 2025.  The Summons is supported by a short affirmation of the Applicant (“Affirmation”)  and a 3-page Statement (“Statement”), both of which were filed also on 23 July 2025.

3.  Despite the directions of the Registrar of Civil Appeal dated 23 July 2025 for the Applicant to lodge written submissions in support of this application by 6 August 2025, no submissions have been lodged.

4.  Having considered the documents, this court is of the view that it is appropriate to determine this application on paper without a hearing pursuant to O 59, r 14A of the Rules of the High Court, Cap 4A (“RHC”).

5.  The Applicant had 14 days from the date of the Dismissal Order (25 April 2025)  to appeal against the same (see Order 53, rule 3(4)  of RHC).  The 14-day period expired on 9 May 2025.  The Applicant filed her summons below for extension of time on 6 June 2025.  She was out of time by almost 1 month.

6.  It is trite that in deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted.  The prospect of success of an intended appeal is important because the court will not grant an extension of time for a hopeless appeal: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

7.  There is nothing in the Summons or the Affirmation or the Statement which explains the delay in question.  If the Applicant is relying upon the same explanations advanced before the Judge at the hearing of the extension of time application on 8 July 2025, such explanations, namely, (a)  not receiving a copy of the Form CALL-1 dated 25 April 2025 and (b)  only received the Form CALL-1 on 31 May 2025, were not accepted by the Judge as credible or good reason for the delay.  The Judge also found that although the delay was not too long, it was inexcusable.  We agree with the Judge.  

8.  In respect of the prospect of success of the Applicant’s intended appeal, the general approach of this court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this court 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.  This court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

9.  Further, the assessment of evidence, Country of Origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.  In the Affirmation, it is alleged that: “The Decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country”.  The Form CALL-1 recorded that the Applicant’s leave application was considered on paper only.  However, in the Applicant’s Form 86, there was no request for an oral hearing.  This complaint does not assist the Applicant.

11.  The Statement contained the following allegations: (a)  the Applicant’s life will be seriously threatened by creditors if she returns to Vietnam; (b)  the Director’s suggestion of internal relocation is completely unfeasible because of the Applicant’s poor health and disadvantage in the labour market; (c)  it is quite possible due to the nationwide social network of gangsters for them to find the Applicant at her new residence; and (d)  the Director did not consider her human rights. 

12.  This court is unable to see how any of these allegations can get off the ground.  Allegations (a)  to (c)  were considered by the Board (see paras 20 to 23 and 25 of Form CALL-1).  It is not the function of the court to re-assess the Applicant’s non-refoulement claims.  As for (d), the Board found that the Applicant did not make out her non-refoulement claims on any of the grounds under the Unified Screening Mechanism (Form CALL-1, para 4).  All the relevant human rights enjoyed by the Applicant had been considered by the Board, whose decision was subsequently examined by the Judge (Form CALL-1, para 26).

13.  For completeness, this court has considered carefully the Judge’s reasons for dismissing the Leave Application and is unable to see any arguable ground of appeal against the same. 

14.  In the premises, the Summons is dismissed with no order as to costs.