RE VU THI TUYEN

CAMP 379/2022, [2023] HKCA 1316

On Appeal From [2022] HKCFI 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 379 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1698 OF 2021)

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J U D G M E N T

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

1.  On 24 February 2022, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant for leave to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap.4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. That deadline would have been 14 March 2022 but for the General Adjournment Period from 7 March 2022 to 11 April 2022 (“GAP”).

2.  During GAP however, the applicant filed a summons in the Court of First Instance on 7 April 2022 for extension of time to appeal against the JR Decision (“the CFI summons”).  In fact, she was not out of time as the deadline was extended to the day after the expiry of GAP, i.e. to 12 April 2022.  Inquiries made by this Court revealed that the CFI summons was filed by the Registry of the High Court as it had been received by post on 30 March 2022.  The CFI summons was then directed to the Judge on 7 April 2022 who dismissed it on 19 July 2022.

3.  On 26 September 2022, the applicant filed a summons in CAMP 379/2022 (“the CA Summons”) in the Court of Appeal applying to this Court for an extension of time to appeal against the Judge’s decision dated 19 July 2022 and leave to advance an unarticulated “new sole ground of appeal”.  To get matters back on the right procedural track, this Court will treat the CA Summons as a renewed application for leave to appeal out of time against the JR Decision, and not the Judge’s decision dated 19 July 2022, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  In compliance with the directions made by the Registrar of Civil Appeals on 26 September 2022, the applicant lodged her written submissions on 10 October 2022.

5.  Under Order 59 r.14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 20 July 2015.  She surrendered to the Immigration Department on 23 July 2015.  On 9 June 2017, she raised a non-refoulement claim alleging that if refouled, she would be harmed or killed by her creditor due to her failure to repay her outstanding debts.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2022] HKCFI 559).

7.  By a Notice of Decision dated 4 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  On 18 July 2017, the applicant lodged an appeal to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decision.

9.  By a letter from the applicant to the Board dated 30 August 2017, she applied to withdraw her appeal (against the Director’s decision dated 4 July 2017) saying that her problem in Vietnam had been resolved and that it was safe for her to return to her home country. 

10.  By a decision dated 23 November 2017, the Board informed the applicant that it was satisfied that (1) her application to withdraw was freely sought and that she understood the consequences of the withdrawal and (2) there was good reason for her proposed withdrawal, ie she considered it safe for her to return to her home country.  The Board directed that her appeal/petition be withdrawn and that the Director’s decision dated 4 July 2017 be confirmed (“the Board’s 2017 Decision”).

11.  However, after more than 3 years and 8 months, on 6 August 2021 the applicant wrote to the Board to request that it proceed with her former appeal to the Board against the Director’s decision. On 19 August 2021, the Board replied declining the applicant’s request as her appeal had already been withdrawn and the Board’s Decision was final (“the Board’s 2021 reply”).

Application for leave to start judicial review

12.  On 15 December 2021, the applicant filed a Form 86 to apply for leave to judicially review the Board’s 2021 reply.  The grounds put forward by the applicant in her Form 86 were as follows:

“1. The Torture Claims Appeal Board underestimated the injuries and cruel treatment I had suffered in Vietnam which I should say it put me under imminent danger and threat to my life. Due to the same, I believed that my claims at least meet the criteria of CIDTP and/or BOR II.

 2.   I receive copy of the Decision of Torture Claims Appeal Board made on 19^th August 2021 when I am imprisoned in Lo Wu Correctional Institution and try my best to make this Judicial Review application in due course so I need extension of time.”

13.  In light of the above, the Judge treated the application as a challenge to the Board’s 2017 Decision.  In her affirmation filed in support of her Form 86, the applicant claimed to have been misled by an immigration officer into withdrawing her appeal to the Board while being detained by the Immigration Department in August 2017, but she did not provide any details or particulars as to how she was misled, or why it had taken her so long to challenge the Board’s 2017 Decision.

14.  Order 53 r.4(1) of the RHC requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when the grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  By then the applicant was out of time with her application by more than 3 years and 8 months.

The JR Decision

15.  The applicant attended an oral hearing on 8 February 2022 at which she alleged that in fact she had returned to Vietnam after the 2017 Decision, but then returned to Hong Kong illegally in 2020, whereupon she was arrested. The Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application with reasons set out in [13] – [19] of the JR Decision:

“13.  In the Applicant’s case, a delay of more than 3 years and 9 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that after withdrawing her appeal and her subsequent discharge from prison in May 2018, she was then repatriated back to Vietnam, but on 30 July 2020 she sneaked back into Hong Kong, and on 8 August 2020 she was arrested by police, and after she was referred again to the Immigration Department where she has since been detained at the Castle Peak Bay Immigration Centre (‘CIC’), she decided to pursue with her former appeal to the Board against the Director’s decision, as she has been in Hong Kong for so many years that she just does not want to return to Vietnam.

14.  The Applicant has not produced any evidence to corroborate her bare assertions, but if indeed she was repatriated back to Vietnam in 2018 upon her release from prison, and which may explain the lengthy gap between then and now, it would be fatal to her non-refoulement claim as well as her appeal/petition to the Board, as Section 37ZF(1) of the Immigration Ordinance provides that such a claim whether pending final determination or substantiated must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, while subsection (2) also stipulates that such a claim treated as withdrawn must not be re-opened.

15.  Accordingly, and on the Applicant’s own case of having left Hong Kong in 2018, her appeal/petition to the Board against the Director’s decision must be treated as withdrawn and must not be re-opened regardless of whether she had indeed been misled into withdrawing her appeal earlier in 2017 which resulted in the Board’s decision of 23 November 2017.

16.  As noted above, the Applicant has not provided any evidence in support of her such assertions, in particularly of her deportation from Hong Kong at that time, but even if she had in fact never left Hong Kong at the time as asserted, and as such her appeal would not be so treated as withdrawn, she has in my judgment still failed to establish to my satisfaction that she had indeed been misled into withdrawing her appeal in 2017 with just some bare assertions without any details or particulars as to how she had been so misled.

17.  In Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, the Court of Appeal held in [41] that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal, and that the non-refoulement claim rejected by the Director is finally determined when the appeal against it has been disposed of, as in the present case as stated in the Board’s decision of 23 November 2017.

18.  Furthermore, on the basis of the Applicant’s own case at the highest, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one arising from a private monetary dispute between her and her creditor without any official involvement, and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the consideration and assessment of the Applicant’s non-refoulement claim by the Director, or in the Board’s decision to withdraw her appeal at her own request. Accordingly, I do not find any merits in the intended application either.”

Application for extension of time to appeal the JR Decision

16.  As mentioned above, on 7 April 2022, the applicant filed the CFI Summons which was dismissed by the Judge on 19 July 2022.  Hence, the Summons to this Court which is treated as an application to extend time to appeal the JR Decision.

Discussion

17.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

18.  As for (1), as mentioned earlier, the applicant was not out of time when she filed her CFI Summons.  However, by the time she took out the CA Summons, she was out of time.

19.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation that she was not aware of the rules and was unrepresented, and also that she was not able to file the appeal due to the suspension of social and legal visits by the Immigration Department due to the Covid-19 pandemic when she was detained at the Castle Peak Bay Immigration Centre (“CIC”). 

20.  The applicant also explained that she did not receive any decision made by the High Court at her residential address, but only came to know about the decision from the Immigration Department.  The court record showed that the JR Decision and the Judge’s decision dated 19 July 2022 were sent on the respective days on which the decisions were handed down to the applicant’s last reported address at CIC where the applicant was detained, and both were not returned as undelivered mail.  Be that as it may, we take into account that she did file the CFI Summons indicating her wish to appeal the JR Decision within time, but not the CA Summons. 

21.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision except to say in her supporting affirmation that “[t]he decision made by the High Court Judge K.W. Lung has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country”.  Obviously, the applicant has mistaken the identity of the judge in her case, but in any event, she did attend an oral hearing before the Judge, and she did not advance any ground and/or pinpoint any error in the JR Decision.

22.  In the applicant’s written submissions, she quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  She further referred to section 37ZT of the Immigration Ordinance (Cap.115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, she did not explain or elaborate how the legal authorities and provisions would apply to or assist her case.

23.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge made errors of law or failed to take account of the relevant matters already placed before the court or was otherwise plainly wrong: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

24.  In the JR Decision, the Judge has duly considered the merit of the applicant’s case by considering the Director’s decision and the Board’s 2017 Decision which, in light of the applicant’s assertions in her application for withdrawal, confirmed the Director’s decision. In this regard, the Judge has rightly explained that the Board had determined and disposed of the applicant’s appeal upon what appeared to be a proper and valid withdrawal of the appeal by her, thus the appeal was no longer extant, and the Board had become functus officio with no jurisdiction to take any further step on the applicant’s appeal: see Re Das Purnima Rani [2019] HKCA 669.  As such and in the absence of any evidence from the applicant that her withdrawal was invalid, or there was any error of law or procedural unfairness in the Board’s 2017 Decision, there is no basis to challenge the Board’s 2017 Decision.

25.  As to the other ground in the Summons, it is not the practice for this Court to entertain new grounds not canvassed in the lower court: Orense Marian Masangkay [2022] HKCA 33 at [7]. 

26.  We are satisfied that the Judge had reviewed the Board’s Decision with rigorous examination and anxious scrutiny and duly considered the applicant’s grounds.  Notwithstanding that the Judge erred in ruling the applicant’s summons issued on 7 April 2022 was out of time, we agree with the Judge was right to dismiss the applicant’s leave application upon her own request to withdraw her appeal against the Board’s Decision and there were no merits in any event.

27.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s Summons filed on 26 September 2022.