RE NGUYEN THI HUONG AND ANOTHER

HCAL 2200/2018

[2021] HKCFI 1730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2200 OF 2018

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D E C I S I O N

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1.  On 17 August 2020 I refused to grant leave to the 1^st Applicant, a mother from Vietnam (“A1”), and the 2^nd Applicant, her minor son born in Hong Kong (A2”), to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claim based on alleged fear that upon their return to Vietnam they would be harmed or killed by the creditor of A1’s former husband over his outstanding debt upon finding none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.  The applicants now by a summons issued on 24 February 2021 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 31 August 2020, and hence they were almost 6 months late with their intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicants’ case, a delay of almost 6 months must be considered as very substantial and excessive, for which A1 explained in her supporting affirmation that as she does not read or understand English, she was not aware of the 14-day period required for the filing of her appeal, and that she was then being detained at Lo Wu Correctional Institution and was unable to seek legal advice for their intended appeal.

5.  The court record shows that the decision was sent on the same day to the applicants’ last reported address without being returned through undelivered post, and in the absence of any details or particulars as to when A1 was first being detained at Lo Wu Correctional Institution or when was she subsequently released or any documentary evidence to corroborate her bare assertions, and as she also failed to attend the hearing of the summons without any explanation, I am not satisfied that the applicants have provided any good reason for their serious delay, while ignorance of the rules can never be accepted as any excuse for their non-compliance.       

6.  More importantly, nor did the applicants put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in the summons or affirmation, and as noted above nor did they attend the hearing of the summons without any explanation.

7.  I am of course mindful of the fact that A2 being a minor now aged only 3 was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been advanced to the Board due to lack of legal representation in his appeal before the Board, as the proper approach to which have recently been considered by the court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office, CACV 32/2020, [2020] HKCA 971, 27 November 2020, which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

8.  In the present case, A2’s claim was premised fundamentally on A1’s claim of risk of harm from the creditor of her former husband whom she had divorced in 2016 and had since disappeared in Vietnam, and that the creditor was never aware of the presence of A2 and had even on the basis of A1’s own case never made any threats against A2.

9.  More significantly, the Board upon considering A1’s evidence given previously to the Director and at the oral hearing of her appeal before the Board disbelieved her that there were any threats made against her over her former husband’s debt prior to her departure of Vietnam as alleged by her, and in doing so the Board had effectively and specifically considered the case made in support of the claims of A1 and A2 individually and rejected each of them in the way as they were advanced (see [27] – [40] of Board’s decision).

10.  In addition, the Board did also proceed to find in case that it was wrong as to its findings against A1’s credibility that both state protection and reasonable internal relocation would be available to both A1 and A2 upon their return to Vietnam for the reasons set out in paragraphs 51 to 53 of its decision.

11.  As such and having looked at all the evidence filed in the applicants’ case, I do not see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically to A2 which had not been advanced to the Board or considered by it because of lack of legal representation before the Board. In the premises, and as I did not find any reasonably arguable basis for A2’s intended judicial review, so do I find no arguable merit in his intended appeal against the decision, and accordingly I therefore treat the absence of legal representation for A2 in these proceedings a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review. 

12.  As such and in the absence of any error in the decision being clearly and properly identified by the applicants, I do not see any prospect of success in their intended appeal, and as it would be futile to extend time for what appears to be a hopeless appeal, I accordingly refuse their application for extension of time to appeal, and dismiss their summons.