RE PHAM THI THUY

CAMP 41/2023, [2023] HKCA 1222

On Appeal From [2021] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 41 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1263 OF 2018)

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J U D G M E N T

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

1.  On 15 March 2021, DHCJ K. W. Lung (“the Judge”) refused to grant extension of time for the applicant to seek leave to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (“RHC”), 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.

2.  On 6 July 2022, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 2 August 2022. 

3.  On 1 February 2023, the applicant filed a summons in CAMP 41/2023 (“the Summons”) with the Court of Appeal for extension of time to appeal against the JR Decision.   

4.  Pursuant to the directions given by the Registrar of Civil Appeals on 1 February 2023, the applicant should lodge her written submissions on or before 15 February 2023.  However, she failed to do so.  The Registrar further directed that in case the applicant fails to lodge her written submissions as directed, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a Vietnamese national. She came to Hong Kong illegally on 6 December 2012 and was arrested by the police on 17 January 2014.  She lodged her non-refoulement claim on 27 August 2014 alleging that, if refouled, she would be harmed or killed by her creditor and members of the triad society in Vietnam.  The factual background of this case was succinctly summarised by the Judge at [4] - [5] of the JR Decision ([2021] HKCFI 639).

7.  By a Notice of Decision dated 27 January 2015 and a Notice of Further Decision dated 14 March 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4].

8.  The applicant appealed against the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  She attended oral hearings on 24 May 2016 and 26 May 2017 respectively.  By its decision dated 4 August 2017, the Board dismissed the appeal.  The Board did not accept the applicant’s case that she had borrowed money from her creditor for the purpose of operating an illegal betting business as she had little knowledge of the business, she could not give a coherent account of how her business expanded and how she came to lose all the capital.  There are also significant discrepancies in the applicant’s evidence concerning the debt and repayment.  Therefore, the Board concluded that the applicant’s claim is not credible and failed on all applicable grounds. 

Application for leave to start judicial review

9.  On 4 July 2018, the applicant filed a Form No. 86 out of time to apply for leave to judicially review the Board’s decision.  In her supporting affirmation, she reiterated her case and said that it was unfair for the adjudicator to assess that it is safe for her to return to Vietnam.

The JR Decision

10.  The Judge considered the application on paper as the applicant did not request an oral hearing.  After due consideration of the decision of the Board, the Judge refused to grant extension of time for the applicant to seek leave to apply for judicial review for reasons set out in [15] to [17] of the JR Decision:  

“15.  The applicant’s grounds in support of her application are her opinions.  The Board had considered her evidence and given its reasons for disbelieving her evidence.  There is no specific reason why the Board should not come to its conclusions as it did.

16.  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.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Application for extension of time to appeal against the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 6 July 2022 for an extension of time to appeal.  That was dismissed by the Judge on 2 August 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by more than 14 months when she filed the summons for extension of time in the Court of First Instance.  The delay is very substantial.

14.  As for (2), the reasons for the delay, the applicant explained in the affirmation filed with the court below that she could not take the oath to file the appeal because she had lost her Recognizance Form.  She had to wait for the new Recognizance.  As an appellant does not need to take an oath when filing a Notice of Appeal, her explanation cannot justify the substantial delay. 

15.  The most important consideration is (3), the prospect of success of the intended appeal from the JR Decision. 

16.  The applicant stated the following grounds of appeal in her supporting affirmation:

(1)  The decision of the High Court has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

(2)  The merits of this ground of appeal constitute sufficient justification for the court to exercise its discretion in allowing this appeal out of time.

17.  Pursuant to Order 53 rule 3(3) of RHC, the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  As the applicant did not request an oral hearing in her Form 86, the Judge was entitled to determine her application on paper.  Besides, the applicant had the opportunity to make submissions in her supporting affirmation for the court’s consideration.  There is no basis for her to challenge the Judge for reaching the decision unfairly without allowing her an opportunity to clarify her case.

18.  We are satisfied that the Judge had reviewed the decision of the Board with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 1 February 2023.