LUU THI NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 237/2023, [2024] HKCA 661

On Appeal From [2020] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1766 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the Order of Deputy High Court Judge K.W. Lung (“Judge”) dated 20 December 2022 which ordered the sanction under a prior unless order to take effect immediately, resulting in the dismissal of the applicant’s application for leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 16 August 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 March 2017 rejecting her non-refoulement claim.

2.  On 5 May 2023, the Judge dismissed the applicant’s application in the Court below for extension of time to appeal.

Background

3.  The applicant is a national of Vietnam born in 1970.  She claimed to have entered Hong Kong illegally through Mainland China on 8 October 2014.  On 28 October 2014, the applicant surrendered to the Immigration Department and lodged her non-refoulement claim on the same date on the basis that she would be harmed or killed by a money lender (Dung) and certain customers of her bookmaker business as a result of her inability to repay the loan and money owed to them respectively, if she was refouled to Vietnam.

4.  The applicant’s claim was assessed by the Director with reference to the relevant risks of BOR 3 risk,[1] persecution risk,[2] and torture risk.[3]  By a notice of decision dated 8 July 2015, the Director rejected the claim.

5.  The applicant’s claim was subsequently further assessed by the Director with reference to BOR 2 risk.[4] By a notice of further decision dated 10 March 2017, the Director also rejected the claim.

6.  The applicant appealed to the Board against the Director’s decision dated 8 July 2015 on 28 July 2015, which was 5 days out of time.  The Board did not accept the applicant’s reasons for the delay.  There was no consideration of the merits of the case.  In its decision dated 31 December 2015, the Board dismissed the applicant’s application for the late filing of the appeal/petition.

7.  Subsequently, the applicant appealed to the Board against the Director’s further decision dated 10 March 2017 on 17 October 2017, which was around 6.5 months out of time. Again, the Board did not accept the applicant’s reason for the delay.  There was no consideration of the merits of the case.  In its decision dated 16 August 2018, the Board dismissed the applicant’s application for the late filing of the appeal/petition.

The Judge’s decisions in the court below

8.  On 28 August 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision dated 16 August 2018, without specifying any grounds in that form.  In the supporting affirmation, the applicant repeated the basis of her non-refoulement claim and stated that the Board did not know her situation of being assaulted and the decision was unfair to her.  The applicant further annexed the Board’s decision dated 16 August 2018 together with its covering letter and a one-page handwritten note explaining the circumstances of her delay.

9.  The Judge considered the application on the basis of the documents alone as the applicant was absent at the hearing scheduled for 27 November 2019.  On 23 June 2020, the Judge issued his decision[5] to grant leave to the applicant to apply for judicial review of both the Board’s decisions dated 31 December 2015 and 16 August 2018.  The reasons were set out in [11] to [14] of the Form CALL-1 as follows:

“11.   The applicant now applies for leave to apply for judicial review of the Board’s Decision dated 16 August 2018 only. However, I consider that the Board’s Decision dated 31 December 2015 should be considered as well because her applications cannot be considered separately. That is to say, the Director’s Further Decision cannot be considered without considering the facts as set out in the Director’s Decision dated 8 July 2015.

   DISCUSSION

   12.  In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Court of Appeal held:

‘ 17.  Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

  18.  Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

  ……

  20.  It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’     

   13.  The Board had not considered the merits of the applicant’s case. Thus the applicant has a reasonable prospect of success in her intended judicial review of the Board’s Decisions.

   14.  I grant leave to the applicant to apply for judicial review of the Board’s Decisions. The application should take out her application in accordance with Order 53, rule 5 of the Rule of the High Court.”

10.  Under Order 53 rule 5(4) of the Rules of the High Court (Cap 4A) (“RHC”), an originating summons must be issued for the application for judicial review within 14 days after the grant of leave.  The applicant did not cause an originating summons to be issued within the time allowed.  Instead, more than 2 years after that time limit, the applicant filed a summons on 4 July 2022 together with a supporting affirmation to apply for extension of time to file an originating summons pursuant to the Judge’s order dated 23 June 2020.  In her affirmation, the applicant stated that she did not receive the court’s letter, that she only found out about the letter after being informed by government staff, and that she later found out that the time limit had already expired.  On 28 July 2022, the Judge issued his decision[6] in writing, ordering that unless the applicant issues an originating summons for judicial review of the Board’s decisions within 14 days of the service of this order, the applicant’s application shall be deemed to have been abandoned, the leave granted shall be set aside and her application be dismissed forthwith (“Unless Order”).

11.  Around 3 months after the expiry of the time limit specified in the Unless Order, on 15 November 2022, the applicant filed a further application for extension of time to issue an originating summons and for relief from the sanction imposed by the Unless Order.  In her affirmation, the applicant stated that the delay was due to her old age and her lack of knowledge of the English and Chinese languages.  On 20 December 2022, the Judge issued his decision[7] in writing dismissing the summons and ordering that the Unless Order should take effect immediately.

12.  On 28 April 2023, the applicant filed another summons together with a supporting affirmation to apply for extension of time to appeal the Judge’s order dated 20 December 2022.  In her affirmation, the applicant stated that she did not receive any letters from the court, that she was old, that she did not understand English, and that she needed help from friends who knew how to appeal.  On 5 May 2023, the Judge made an order that “The application for leave for judicial review has been dismissed.  Application is dismissed.”

The renewed application before this Court

13.  By summons filed on 23 June 2023, the applicant made an application to the Court of Appeal for leave to “appeal out of time the order dated 5 May 2023”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 20 December 2022 dismissing her summons for extension of time to issue an originating summons and ordering that the Unless Order should take effect immediately. 

14.  In the applicant’s supporting affirmation, she stated that the decision made by the High Court had been reached unfairly without allowing her an opportunity to clarify her case and situation in her home country and that the merits of this ground of appeal would sufficiently justify the court to exercise its discretion to allow the appeal to be lodged out of time.  There was no further elaboration.

15.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 23 June 2023.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the RHC, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

16.  The applicant was late for about 3.5 months when she filed her summons for extension of time to appeal on 28 April 2023.  In her supporting affirmation, the applicant stated that the delay was due to her old age and her lack of knowledge in the English and Chinese languages.  As this is a substantial delay, the court will not extend time unless there are real prospects of success in the intended appeal.

17.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The applicant’s intended appeal against the Judge’s dismissal of her summons is, essentially, an appeal against the Judge’s refusal to grant relief from the sanction imposed by the Unless Order.

18.  The legal principles relating to obtaining relief from sanction are trite.  Order 2 rule 4 of the RHC provides that:

“ Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”

Irrespective of the Judge’s order dated 20 December 2022 where it was ordered that the Unless Order should take effect immediately, since the applicant’s summons was filed more than 14 days after the time stipulated by the Unless Order had lapsed, the dismissal of the appeal had taken effect since 12 August 2022.

19.  Under Order 2 rule 5(1) of the RHC, in determining an application for relief from sanction imposed due to the failure to comply with a court order, the court shall consider all the circumstances, including, inter alia, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.  In Top One International China Property Group Co Ltd v Top One Priority Group Ltd [2011] 1 HKLRD 606, the court stated at [41] as follows:

“ 41. … That is to say, although intentional and contumelious disregard of a court’s peremptory order may be the most usual circumstance leading to the refusal of an extension of time to comply with a peremptory order, the exercise of the discretion to refuse an extension or to relieve a party from sanctions is not limited to cases of intentional and contumelious default. As directed by RHC O.2 r.5, the court should consider all the individual circumstances including those listed in r.5(1) at sub-paragraphs (a) to (j). Depending on the circumstances, failure to comply with one or a number of orders through negligence, incompetence or sheer indolence may be such as to lead the court to conclude there is an existence and degree of fault which warrants a refusal of an extension of time, so that relief from a sanction for non-compliance specified in a peremptory order (including an order striking out a pleading) should not be granted. Any other conclusion would, in my opinion, be to ignore the positive duty placed on parties to assist the court to further the underlying objectives of CJR (RHC O.1A r.3) and on the court to do so by actively managing cases (RHC O.1A r.4(1)).”

20.  In considering whether to extend time to grant relief from sanction, the Court will consider all factors including the length of delay, reasons for the delay, merits of the proposed application for relief (which will encompass the factors set out in O.2 r.5(1)) and any prejudice to the other party (see Hong Kong Civil Procedure 2024, para 2/4/1 and Bruce James Stinson v Gu Ming Gao [2019] HKCFI 43).  In addition, it was stated in Daimler AG v Leiduck [2012] 3 HKLRD 119 at [57]:

“ In our view, a weighty factor in the weighing exercise to be undertaken by the Court on a fresh exercise of the discretion is the question of proportionality of the sanction in the circumstances of this case.”

21.  Even if we were to accept that the non-compliance with the Unless Order was excusable (which we do not), we are of the view that, in the circumstances of this case, we should not disturb the Judge’s exercise of his discretion not to grant relief from the sanction imposed by the Unless Order.  The Judge had considered the relevant factors in the weighing exercise, including the applicant’s reasons for delay, the total period of delay, the fact that she was at liberty to seek assistance from the Duty Lawyers Service, and the fact that the applicant had still failed to inform the court when she would comply with the Unless Order (i.e. issue the originating summons).  We agree with the Judge that the applicant failed to provide sufficient reason for her failure to comply with the Unless Order.  Further, although the applicant was late for 3.5 months in taking out her application after the time limit stipulated in the Unless Order, she had actually failed to issue the originating summons for about 2 years.

22.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for relief from the sanction imposed by the Unless Order, but to deal with an appeal based on the grounds of appeal advanced.  According to the applicant’s supporting affirmation, her proposed ground of appeal pertains only to the merits of the Board’s decision.  As such, the applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application and not granting relief from sanction imposed by the Unless Order.

23.  In conclusion, we share the Judge’s view that there is no merit in the intended appeal against the order dated 20 December 2022, and for the same reason, we are satisfied that extension of time to appeal should be refused.  The applicant’s summons dated 23 June 2023 is accordingly dismissed. 

[1]  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).

[2]  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.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]  [2020] HKCFI 1280.

[6]  [2022] HKCFI 2155.

[7]  [2022] HKCFI 3682.