RE TRAN THI DAN

CAMP 118/2022

[2023] HKCA 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1398 OF 2018)

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J U D G M E N T

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

1.  On 17 January 2023, the applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s judgment of 2 December 2022 (“the Judgment”)  ([2022] HKCA 1775). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 7 April 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 846).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 30 December 2022.  Accordingly, the applicant was late for over two weeks in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant asserted that if refouled, her life would be seriously threatened or subjected to death risk as the gangsters in Vietnam are cruel and violent.  She also contended that internal relocation would not be feasible as her health is not good and she is not an active person.  She further asserted that it would be quite possible for her creditor and the gangsters to find out her new residence given their nationwide social network with corrupted officials.  She further contended that the Immigration Department failed to consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

7.  In her supporting affirmation filed on 17 January 2023, the applicant contended that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case and situation in her country.  She also asserted that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and that merits of such ground constitute sufficient reason to justify the Court to exercise its discretion to allow this appeal out of time. However, the applicant failed to point out or give any particulars as to what the alleged ground of appeal was.

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 30 January 2023.  In those submissions, she repeated the procedural history of her non-refoulement claim.  She also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board had acted in a procedurally unfair manner without properly assessing her credibility.  She also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  She then repeated those matters as stated in her Notice of Motion.  It is noted that her submissions are all general propositions and the applicant failed to show specifically how they are relevant to her case.

9.  At the outset, the applicant’s delay of over two weeks was substantial and she failed to give any reason, let alone good reason for her delay.  More importantly, the contents raised in her Notice of Motion, supporting affirmation and written submissions are all general, bare and vague without any specific particulars.  She also failed to identify any specific error in the Judgment with particulars.  Clearly, her arguments do not constitute viable grounds of appeal and her intended appeal is a non-starter.

10.  In any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

11.  Moreover, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.