RE PHAM THI HIEN

CAMP 327/2021

[2021] HKCA 1593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 327 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1290 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 18 March 2021 refusing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of her application.      

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decisions of the Director of Immigration (“the Director”) rejecting her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 54.  She entered Hong Kong Illegally and was arrested by the police on 24 September 2014.  On 8 October 2014, she raised a non-refoulement based on fear of being harmed or killed by her creditor because of her failure to repay his loan.  The details of the applicant’s claim were set out in the Director decision dated 28 April 2016 at [6].  We will not repeat them.       

6.  By two decisions dated 28 April 2016 and 31 October 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] ground, and the further decision covered also the BOR 2 risk[4] grounds.

7.  The applicant’s appeal against the Director’s first decision to the Board was heard at an oral hearing held on 9 May 2017.  By then the Board had also given the further decision. The Board therefore dealt with the appeal on account of all the applicable grounds. By its decision dated 15 August 2017, the Board dismissed the appeal.  The Board found the applicant’s account incredible and implausible by reason of its internal inconsistencies and inherent improbabilities.  The Board rejected her case of being indebted to creditors or that she was pursued for inability to repay her debts.  In any event, the Board found that state protection and internal relocation alternatives are reasonably available to the applicant which would reduce or negate any risk of harm she may face.  The Board concluded that the applicant failed to show that she is entitled to non-refoulement protection on any of the appliable grounds.

8.  On 5 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  She only stated in her affirmation that it was out of fear of being further harmed by her creditor that she came to Hong Kong, and that it was unfair for the Board to say that she could safely return to Vietnam.    

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 18 March 2021[5], the Judge refused the application.  In brief, the Judge noted that the application was out of time by seven months and three weeks.  The Judge nevertheless went on to consider the merits of the intended judicial review.  He found there was no error of law or procedural unfairness in the Board’s decision, and concluded that the intended judicial review has no reasonable prospect of success. 

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 1 April 2021.

11.  By a summons filed on 24 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the paper.  By his decision handed down on 28 July 2021, the Judge dismissed the application[6]. 

12.  On 9 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was more than seven weeks late when she filed the 24 May 2021 summons, which is not insubstantial.  The applicant gave no explanation for the delay in her application to the Judge.  In this application, the applicant stated in her affirmation that she did not receive the Court’s decision as she had moved to a new address, and when she was informed of the decision by the Immigration officer, the time for appeal had expired.  She also explained that she did not know the appeal procedure and she does not know Chinese or English, and thus had to rely on the help of her friends.  The Court record shows that the Form CALL-1 was sent by post to an address in Tuen Mun, which was provided by the applicant in November 2020.  It was returned to the Court in April 2021 undelivered.  While we accept that the applicant did not receive the Judge’s decision, we would point out that the fault lies with the applicant in not informing the court of the change in her address.  We are not satisfied that the applicant has satisfactorily explained the delay.             

15.  As to the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal 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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant’s affirmation complained that the Judge’s decision was unfair in that she was not allowed an opportunity to clarify her case and her situation in her country. It asserted that the applicant would be tortured, threatened and killed by her creditors and gangsters as they are violent, have no regard for the law and would kill people out of anger.

18.  In the written submission, the applicant reiterated her case that she came to Hong Kong out of fear of being harmed or killed by her creditors and the gangsters.  She quoted extensively from [43] to [45] and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim, making her liable to be removed.  It also complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility. 

19.  In our view, the matters put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  In the first place, the Board has rejected the applicant’s case as being incredible and implausible.  It further held that state protection and internal relocation options are reasonably available to the applicant.  Although the applicant complained that the decision was unfair, she has not identified any substantive ground to challenge the Board’s findings and reasoning.  There is therefore no factual basis to support the assertion that she will be harmed or killed if she were to return to Vietnam.  The applicant has also not shown how the legal principles cited in the written submission relate to her case or intended appeal.

20.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 9 August 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2021] HKCFI 647.

[6] [2021] HKCFI 1876.