RE NGUYEN NGOC ANH

CAMP 185/2023, [2024] HKCA 337

On Appeal From [2022] HKCFI 2965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 185 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2231 OF 2020)

____________________

____________________

________________

J U D G M E N T

________________

Hon Au JA (giving the Judgment of the Court):

1.  On 9 May 2023, the applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 16 March 2023 ([2023] HKCFI 672) (“the EOT Decision”) refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 18 October 2022 ([2022] HKCFI 2965) (“the Leave Decision”) dismissing her application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) rejecting her non-refoulement claim. 

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

BACKGROUND

4.  The applicant is a national of Vietnam.  She lodged a non‑refoulement claim which was rejected by the Director.  The subsequent appeal against the Director’s Decision was also dismissed by the Board.

5.  On 6 November 2020, she filed an application for leave to apply for judicial review against the Board’s Decision.  No grounds of her intended review were given in her Form 86 or supporting affirmation.  She also failed to provide a copy of the Board’s Decision under challenge.

6.  On 6 September 2022, the Immigration Department wrote to the Court attaching a letter by the applicant dated 2 September 2022 which stated that the problems in her country had been resolved and it would be safe for her to return to Vietnam and that she would like to withdraw her application for leave to apply for judicial review.

7.  On 18 October 2022, following Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19], the Judge acceded to her request to withdraw her application and dismissed her application for leave to apply for judicial review.

8.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

9.  On 24 February 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was almost four months late with her intended appeal.

10.  On 16 March 2023, the Judge refused the applicant’s application.  The Judge found that as the application for leave to apply for judicial review of the Board’s Decision was dismissed, the Court had no further jurisdiction to deal with the applicant’s application. Since the dismissal of the applicant’s application for leave to apply for judicial review of the Board’s Decision was made with the express consent of the applicant, the Judge held that there was nothing that the applicant could appeal against.  Accordingly, her application for extension of time was dismissed.

THIS APPLICATION

11.  By a summons and a supporting affirmation (attaching a written statement) taken out on 9 May 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons, she failed to give any reason justifying her delay or any intended ground of appeal.  In her supporting affirmation, she claimed that the Leave Decision was unfairly reached without allowing her an opportunity to clarify her case and the situation in her country.  She further claimed she had a good ground of appeal but failed to specify what that ground was.  In her written statement, she stated that her life would be seriously threatened as gangster and creditors were cruel and violent.  She also claimed internal relocation would not be feasible for her and that the Immigration Department failed to consider her human rights under various legal provisions.

12.  Contrary to the directions of the Registrar of Civil Appeals dated 9 May 2023, the applicant did not lodge any written submissions.

DISCUSSION

13.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

14.  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 the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

16.  In our view, a delay of almost four months is very substantial and the applicant has failed to give any reason, let alone good reason for her delay.

17.  In any event, the present application is wholly misconceived.  The Judge’s decision to dismiss the application for leave to apply for judicial review was squarely based on the applicant’s own letter indicating that she was withdrawing her Form 86 with full knowledge of the consequences.  The applicant has not retracted that letter and has failed to demonstrate why her application for leave for judicial review should not be dismissed given her own stance.  There was nothing irregular in the circumstances for the Judge to dismiss the application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19].

18.  In the circumstances, the allegation that the Judge reached his decision unfairly without allowing the applicant an opportunity to clarify her case and the situation in her country has no basis whatsoever.  We do not see any prospect of success in the intended appeal.  The applicant’s summons for an extension of time to appeal is accordingly dismissed.