RE NGUYEN THI HOANG NHUNG

CAMP 222/2023, [2025] HKCA 261

On intended appeal from [2023] HKCFI 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 222 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 70 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 23 February 2023[1] dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) which rejected her no-refoulement claim.

2.  The applicant has filed an affirmation and a statement together with the summons to support her application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Vietnam aged 40. She entered Hong Kong illegally and was arrested by the Immigration Department on 14 June 2017. She raised a non-refoulement claim based on fear of being harmed or killed by a moneylender due to her inability to repay her debt. The applicant claimed that the moneylender and his associates caused damage to her wine bar, took away the furniture and other items in her home, made death threats to her, and on one occasion slapped her causing her to fall and sustain injuries. The details of her claim were summarised in [6] of the Director’s decision.

5.  By a notice of decision dated 28 March 2018, the Director rejected the applicant’s claim under the torture risk[2], persecution risk[3], BOR 3 risk[4], and BOR 2 risk[5] ground.

6.  The applicant appealed the Director’s decision to the Board. The Board considered it was not necessary to hold any hearing and proceeded to determine the appeal on the papers. By its decision dated 18 December 2018, the Board dismissed the appeal.

7.  In gist, the Board found, on the basis of the applicant’s claim, it was a private dispute, the assault did not attain a minimum level of severity, and there was no proper basis for believing that the applicant would face a real risk of harm in Vietnam. On the basis of country of origin information, the Board found that state protection and internal relocation options were reasonably available to the applicant, which would reduce any risk of harm that she might face. In conclusion, the Board held that the applicant failed to establish her entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 9 January 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Other than outlining the factual basis of her claim in her supporting affirmation and disagreeing with the Board’s findings, she did not provide any specific ground for seeking relief.

9.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 23 February 2023, the Judge refused to give leave to apply for judicial review. The Judge held that the applicant had provided no valid ground to challenge the Board’s findings and the intended judicial review had no realistic prospect of success.

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. On 28 March 2023, which was more than two weeks after the expiry of the 14-day period, the applicant filed a summons to apply for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 27 April 2023[6] refused the application.

11.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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.

12.  The applicant was late by more than two weeks, which is not insignificant. The applicant has not provided any explanation for the delay both in the application made to the Judge and in the present application.

13.  As to the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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. It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

14.  In her affirmation in support of the present application, the applicant complained that the Judge’s decision was made unfairly without allowing her an opportunity to clarify her case and the situation in her country.

15.  In the Statement that was lodged together with the present summons, the applicant further stated that (a) the creditors and gangsters in Vietnam are cruel and violent and her life would be seriously threatened or she might even be killed; (b) internal relocation was not feasible as her health was not good, she will be disadvantaged in the labour market, and there is no guarantee that she can adapt to the new environment and make a living; (c) with the nationwide network of the gangsters and the corrupt police in Vietnam, it is quite possible that the creditor and his people will locate the applicant even if she moves to a new place; and (d) the Director has not considered her human right.

16.  We are of the view that the matters stated in the applicant’s affirmation and the Statement do not constitute viable arguments in support of the intended appeal. Firstly, under Order 53 rule 3(3) of the Rules of the High Court, the court may determine an application for leave to apply for judicial review without a hearing unless a hearing is requested in the notice of application. Given that the applicant did not request an oral hearing in the Form 86, or provide any specific ground for seeking relief, the Judge was justified in not listing the application for an oral hearing. There is no error of law or procedural unfairness. Secondly, the Board had assessed the harm in the past to be low and the future risk of harm to be unlikely based on the applicant’s claim. It had also found that state protection is available and internal relocation is viable. The applicant has not identified any error in the Board’s findings or provided any objective factual basis to support her assertions that she will face harm or danger in her home country.

17.  In the circumstances, the applicant has failed to show that her intended appeal has any merit or reasonable prospect of success. It would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 12 June 2023.