RE NGUYEN THI THANH HOA

CAMP 257/2023, [2024] HKCA 603

On Appeal from [2023] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 257 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1289 OF 2022)

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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 19 July 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 13 July 2023 ([2023] HKCFI 1761)  (“the EOT Decision”)  refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 18 April 2023 ([2023] HKCFI 615)  (“the Leave Decision”)  refusing to grant her extension of time and dismissing her application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Director of Immigration (“the Director”)  dated 27 May 2021 (“the Director’s Decision”)  refusing to allow the applicant to make a subsequent claim for non-refoulement protection after her previous claim was rejected by the Director and the Torture Claims Appeal Board (“the Board”).

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 was previously repatriated to Vietnam in 2012 after illegally entering Hong Kong.  She illegally entered Hong Kong again on 24 September 2016.  On 29 September 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts (“the Previous Claim”).  The Previous Claim was rejected by both the Director and the Board respectively on 8 November 2017 and 13 July 2018 on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].  On 26 July 2018, she filed a Form 86 under HCAL 1472/2018 for leave to apply for judicial review against the Board’s decision but later withdrew her application on 27 November 2019, as she alleged that her problem had been resolved and it would be safe for her to return to her home country.  She was repatriated back to Vietnam on 3 January 2020.  Details of the applicant’s Previous Claim were summarised by the Judge at [2] - [7] of the Leave Decision.

5.  Subsequently, on 26 October 2020, the applicant sneaked back into Hong Kong and upon her arrest, she wrote to the Director to make a subsequent claim on the basis that her creditor was still looking for her everywhere in Vietnam that she had to flee her country again for Hong Kong.  She then asserted that she would be harmed and killed by her creditor if refouled to her home country.

6.  By the Director’s Decision, the Director refused to allow the applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of the Previous Claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since the determination of the Previous Claim, or that if there were such changes, those changes when taken together with the material previously submitted in support of the Previous Claim would give her subsequent claim any realistic prospect of success.

7.  On 21 November 2022, the applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s Decision.  By that time, she was 15 months late in taking out her application.  Her grounds in support of her application was summarised by the Judge at [12] of the Leave Decision:

“(1)  That the Director reached the decision wrongly in assessing her subsequent claim in that it was not reasonable or fair as required by the Wednesbury test in failing to recognize that her right to life must be protected by the criminal law from killings which she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  That the Director acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take into account of the Applicant’s personal background and experience and failed to consider or give enough weight to relevant COI that police in her home country would not be able to protect;

(4)  That the Director was procedurally improper and/or unfair when assessing whether to accept the explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response;

(5)  That the director failed to take into account or to give enough weight to the argument that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as stated testament by reports by various human rights organizations which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(6)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision that it should be considered unreasonable in the scope of public law.”

8.  On 20 December 2022, the applicant attended an oral hearing in person before the Judge.  A Vietnamese interpreter was also present to provide language assistance.

THE JUDGE’S DECISION

9.  On 18 April 2023, the Judge refused to grant the applicant extension of time and dismissed her application for leave to apply for judicial review.  His reasons were stated at [13] - [18] of the Leave Decision:

“13. By then the Applicant was however seriously out of time with her application, as Order 53 rule 4(1)  of the Rules of the High Court, Cap 4A 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 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.

14. As the last day of the three-month period for her to file her Form 86 fell on 27 August 2021, the Applicant was therefore some 15 months late with her application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration[2016] 2 HKC 393.

15. In the Applicant’s case, a delay of 15 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she had never received the decision in the mail, and it was only much later when she reported on her recognizance to the Immigration Department that she was informed by her immigration officer of the decision, but by then she was already seriously out of time with her application.

16. The record shows that the Director’s decision was sent on the same day of 27 May 2021 to her last reported address without being returned through undelivered post, and in the absence of any further details or evidence to corroborate her bare assertion, I am not satisfied that the Applicant has provided a good or valid explanation for her such serious delay.

17. As for the merits, if any, of her intended application, those grounds relied on by the Applicant as noted above are however all just vague and bare assertions containing a few key words or phrases but without any relevant details or particulars or elaboration as to how they would apply to the Applicant’s case or how did the Director err in the decision, or in what way was state acquiescence relevant to her case, or how did the Director act in a procedurally unfair manner or fail to take account of the relevant COI in the assessment of her claim or to apply high standards of fairness in the decision. None of these assertions were elaborated or presented with any relevant details or particulars by the Applicant and as such are not reasonably arguable for her intended challenge, and given the unchallenged and correct findings by both the Director and the Board in her previous claim of the availability of state protection and reasonable internal relocation to the Applicant upon her return to her home country that any risk arising from her subsequent claim based essentially on her previous claim will be similarly avoided or negated, I do not find any merits in her intended application either.

18.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review given the correct findings by both the Director and the Board in her previous claim upon which her subsequent claim is based that it was a private monetary dispute between her and her creditor without any official involvement that any risk arising therefrom is a localized one which would be negated or avoided by the availability of state protection and internal relocation to the Applicant, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

10.  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.

11.  On 4 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was two days late with her intended appeal.

12.  On 13 July 2023, the Judge refused the applicant’s application, holding that the applicant did not put forth any proper or valid proposed grounds of appeal, and that in the absence of any error in the decision being clearly and properly identified by the applicant, there was no prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation (attaching a “Statement”)  taken out on 19 July 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons and supporting affirmation, the applicant merely asserted that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her home country.

14.  In her “Statement”, she alleged that it was unsatisfactory that the Court of First Instance ruled in the case of “HCAL 1298/2022” that she had no chance of success in reviewing the decisions of the Board and the Director.  She further asserted that if refouled, her life would be in danger given that the creditors and gangsters were violent, and as she was not an active person, internal relocation would not be feasible.  She also complained that the Immigration Department failed to consider her human rights under various legislations but failed to give any specific particulars in support of her contentions.

DISCUSSION

15.  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.

16.  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.

17.  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].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  Although the applicant’s delay of two days is not significant, the Court will need to be satisfied that her proposed appeal has a reasonable prospect of success.  In our view, there is plainly no prospect of success in her proposed appeal.

21.  At the outset, there is no substance in her complaint that she was not afforded the opportunity to present her case and country situation.  The applicant had ample opportunities to make her case in both written and oral submissions before the Judge.  There is plainly no substance in the applicant’s allegation of procedural unfairness.

22.  More importantly, the applicant’s allegations in the present application are all vague, bare and general in nature.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she fails to specifically identify any error in the Leave Decision.  Her assertions are not proper grounds of appeal.

23.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 19 July 2023 is dismissed.