RE LE THI HUONG

HCAL 1129/2018

[2021] HKCFI 1490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1129 OF 2018

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R E A S O N S  F O R  D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons dated 14 April 2021 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 23 March 2021 (the “Order”) refusing her application for leave to apply for judicial review.  The explanation she gave for the delay is that she has not received the Order.  The ground of appeal given by her is that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

2.  The Applicant is a Vietnamese national.  She arrived in Hong Kong on 16 December 2013 on the strength of her passport.  On 30 December 2013, she sought non-refoulement protection claiming that she and her husband would be harmed by the Vietnamese police if returned to Vietnam. Her case is that she and her husband were intercepted by the police for having jumped a red light while riding on their motorcycle; and in the course of their argument with the police officers about penalty and confiscation of their motorcycle, her husband accidentally knocked a badge off the uniform of one of the officers.  On the following day, they received a summons asking her husband to attend a police station.  Fearing they would be harmed by the police, they moved to stay with a friend for a few days and then flew to Hong Kong on 16 December 2013 to seek protection.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, 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.  By 14 April 2021, the time to appeal has expired.  The application for leave to appeal is one week out of time.  The breach is not serious.

4.  In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

Length of the delay and reasons for delay

5.  In her affirmation in support, the Applicant did not give any explanation for the delay and proper grounds of appeal.  She only said she had no financial means to obtain legal advice regarding the procedure of appeal and once it passed 14-day limit, she thought she had lost her right to appeal.  An oral hearing was held with a view of clarifying her reasons for the delay and her grounds of appeal.

6.  The Applicant was muddled and confused about the reason for the delay. At first, she explained that there were a number of public holidays in March/April which caused the delay.  That, of course, could not be a valid reason as the holidays would not prevent her from making up her mind to appeal and to prepare for the documents.  Then, she said the Order was sent to her “old address”, ie the address given in her application for judicial review.  When asked where and when did she move from her “old address”, she changed and said that she did not move but she used her cousin’s address as correspondence address, ie the address stated in the present summons.  When asked when did she start to use her cousin’s address as correspondence address, she said it was since 14 April 2021.  That was well after the date of service of the Order.  Since she never actually moved from her “old address” when the Order was supposed to be served, the reason given was not a valid reason.  When that was put to her, she changed her explanation again and said that the Order never reached her.  The single and cumulative effect of her various explanations is that none of her explanations is credible and she has no valid explanation for the delay.  Nevertheless, the delay is not serious.  The lack of a valid explanation does not weigh heavily against granting extension of time, provided she really has a good ground of appeal.

The Applicant’s ground of appeal and prospect of the intended appeal

7.  The Applicant’s ground of appeal as stated in her supporting affirmation is that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.  She said in paragraphs 3 and 4 of her affirmation:

“3. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

4. I believe that the merits of this ground of appeal constitute sufficient reason Justification for the Court to exercise its discretion in allowing this appeal out of time.”

But the Applicant did not particularize her ground.  She did not say what are the basis of her understanding or belief that there is a good ground of appeal and what the merits are on that undisclosed or unparticularized ground.  This ground is just an empty assertion.

8.  Upon repeated questioning, the Applicant ultimately said that her ground is that she could not go back to Vietnam because her problem in Vietnam is not solved.  She was specifically asked in what way was the Order of DHCJ Pang or the Decision dated 9 March 2018 (the “Decision”) of Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) unfair, unreasonable or irrational.  She could not answer.  She said “she doesn’t know how to explain except that she did not like the Decision.”

9.  The Applicant’s case is as summarised in paragraph 2 above.  Simply put, she said as a result of a dispute over a traffic penalty ticket and knocking off a police officer’s badge, the police wanted to prosecute, imprison, ill-treat or harm her husband.  The Board devoted five pages in its Decision in analysing her evidence and found that her evidence was exaggerated and incredible.  The Board accepted that the Applicant was involved in a traffic offence; that her husband had an argument with an officer and knocked off his badge; that a summons was served on a relative of the Applicant requiring her husband to report to the local police station for the purpose of investigating the traffic incident; but did not accept her claims to fear of harm based on that incident.  On those factual findings, the Board came to the conclusion that there is no basis to support her non-refoulement claims based on any of the four applicable grounds under Unified Screening Mechanism.

10.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director of Immigration (the “Director”) and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board ’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration[2].

11.  The Applicant stated no grounds for the judicial review.  She mentioned nothing in the application form or in the supporting affirmation to suggest how the Board erred in the public law sense.  Her bare general assertion that the local authority will put all the blame on her shoulder is vague and unsupported by evidence.  Hence, DHCJ Pang did not find any reasonably arguable basis to challenge the findings of the Board[3].  He also found the Applicant’s claims of fear of harm at the hands of the local police far-fetched and unsupported by evidence and that the evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled[4]. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, DHCJ Pang was satisfied that there was no error of law, irrational finding or procedural unfairness in their decisions and hence refused the Applicant’s application for leave to apply for judicial review[5].

12.  Before this Court, the Applicant is unable to particularize her ground of appeal.  Having undergone a similar rigorous examination with anxious scrutiny of the DHCJ Pang’s reasons for the Order as set out in the Form Call-1, I am of the same conclusion.  There is no prospect of success in the intended appeal.

Prejudice to the respondent

13.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  In summary, there is no valid explanation for the delay of a week.  That is not necessarily fatal to the application for extension of time.  But the absence of a good ground of appeal is.  It is an abuse of process to challenge a decision without proper and good ground of appeal which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time is refused.