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CAMP 118/2022
[2022] HKCA 1775
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 118 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 1398 OF 2018)
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| RE: |
TRAN THI DAN |
Applicant |
____________________
Before: Hon Cheung JA and Au JA in Court
Date of Judgment: 2 December 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. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 14 December 2021 refusing to grant an extension of time to appeal against the Judge’s decision dated 7 April 2021, in which the Judge refused leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 13 July 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 14 July 2016 and 23 March 2017 (“the Director’s Decisions”) by which the applicant’s non-refoulement claim was refused.
Background
2. The applicant is a national of Vietnam. She arrived in Hong Kong illegally on 21 August 2014. She surrendered to the Immigration Department on 25 August 2014. On the same day, the applicant lodged a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by her creditor due to her inability to repay a loan. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL‑1 Form”)[1].
4. By a Notice of Decision and a Notice of Further Decision respectively dated 14 July 2016 and 23 March 2017, the Director decided against the applicant’s claim. The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR3 risk[5].
5. The applicant appealed to the Board. After a hearing on 29 December 2017, the Board dismissed the appeal on 13 July 2018. The Board’s Decision covered all four grounds for non-refoulement protection. The Board rejected the applicant’s claims, which it did not find to be credible or established on the evidence before it. In any event, the option of internal relocation within Vietnam, such as Ho Chi Minh City, was held to be open to the applicant.
The Judge’s decision
6. The applicant filed a Form 86 on 16 July 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review. In her supporting affirmation, she repeated that she could be seriously harmed by her creditor and his subordinates.
7. After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [12] ‑ [17] of the CALL‑1 Form:
"12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’
14. The Board had rejected her evidence on the facts. She therefore has no factual basis in support of her claim. Her reasons in support of this application do not assist her application.
15. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16.< The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The present application for extension of time to appeal
8. The applicant’s address as stated in her Form 86 was at No 23, Hong King Street, Yuen Long (“the Yuen Long Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Yuen Long Address on 7 April 2021. This letter was not returned undelivered.
9. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 7 April 2021.
10. The applicant took out a summons in the Court of First Instance on 19 November 2021 seeking extension of time to appeal, in which her address was also stated to be the Yuen Long Address. She stated in her supporting affirmation that she did not understand English, and that she was unaware of a deadline for applying for leave to appeal.
11. The applicant’s application to appeal out of time was dismissed by the Judge on 14 December 2021[6].
12. By a summons filed on 20 April 2022, the applicant in effect renewed her application for an extension of time to appeal before this court. In the summons, the applicant stated that she sought leave to appeal out of time against the Judge’s decision dated “14 December 202[1]”, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 7 April 2021. Although the application purported to seek leave to appeal against the decision dated 14 December 2021, we shall treat it as a renewed application for an extension of time against the substantive decision of 7 April 2021, by which leave for judicial review was refused.
13. In her supporting affirmation filed on the same date, the applicant contended that the decision made by the “High Court” was reached unfairly without allowing her an opportunity to clarify her case.
14. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submission with the court. She is thus deemed to have abandoned her right to rely on written submissions.
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
Discussion
16. The applicant did not offer any good explanation for her delay in making her application for extension of time whether before the court below or before this court. The CALL-1 Form was sent to her at her stated address and was not returned undelivered. In the circumstances, we are not satisfied that the delay has been properly explained, and are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.
17. We have nonetheless proceeded to consider the merits of the intended appeal.
18. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
19. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
20. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
21. In any event, we do not consider the applicant’s complaint that she was not afforded an opportunity to present her case persuasive, given that she has filed evidence, such as the affirmation dated 16 July 2018 in support of the Form 86, in which she was able to set out her case and which had been placed before the Judge for consideration.
22. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 20 April 2022 is accordingly dismissed.
| (Peter Cheung) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 846.
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in section 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[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] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 3580.
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