RE NGUYEN THI THUY HA

HCAL 151/2019

[2022] HKCFI 2348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 151 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 3 May 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 7 January 2022 (the “Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”) dated 28 December 2018 (the “leave application”).

2.  In her affirmation filed in support of her application, the Applicant advanced two explanations for the delay. First, she claimed she engaged in self-isolation as she had been in contact with a lot of confirmed Covid-19 patients. It was not clear if she herself had contracted the virus or not. Second, she said she did not speak or understand English and had to depend on her friends to assist her in filing her appeal. Her ground of appeal is that the decision of this Court was reached unfairly without allowing her an opportunity to clarify her case and situation in her home country.

3.  To assist her in presenting a proper explanation of self-isolation and on the assumption that she had contracted the virus, this Court gave her directions by letter dated 24 May 2022 to file a statement within 14 days of the letter stating the date when she contracted Covid-19 and the date when she recovered. She was also informed that her application for extension of time will be determined on paper without a hearing whether she has complied with the above directions or not.

4.  As at the date of this decision, the Applicant has not responded. The letter was posted to her at her address given by her 21 days ago in her Summons. It has not been returned through the post. The delivery service of Hong Kong Post is usually very reliable. There was nothing to suggest the Applicant had moved within those 21 days or had not received the letter. She is deemed to have declined providing better particulars of her explanation for her delay in filing the notice of appeal. The Court could only consider her application on the basis of the evidence in her supporting affirmation.

The Law

5.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1) length of delay;

(2) reasons for the delay;

(3) prospect of success of the intended appeal;

(4) prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

6.  Any person aggrieved by an order of the court may appeal within 14 days after the date of the order. By 3 May 2022 when the Summons was filed, 116 days had lapsed since the date of the Order. The application is 102 days out of time, which is very substantial in the context of a fourteen-day appeal period. The Applicant’s explanation for the delay is just a bare assertion of self-isolation without particulars as to when and whether she had contracted the virus as to require isolation. The delivery service of Hong Kong Post is usually very reliable. The Applicant is deemed to have waived her right to give better particulars of her explanation for the delay in appealing. It is open to the Court to assess the credibility of her explanation solely on the basis of the available evidence.

7.  The Applicant did not actually claim she had contracted the virus and required mandatory isolation imposed by the government. She only engaged in voluntary self-isolation because she had been in contact with my confirmed Covid-19 patients. She gave no particulars as to when she contracted the virus, if she had; or when she engaged in self-isolation, if she had not. The delay is a very substantial period of 102 days. In view of the long delay and her ambiguous explanation, it is difficult to accept her first explanation as credible.

8.  As for her second explanation based on her inability to read and understand English, it should be noted that not until she lodged her present Summons in English, all along her non-refoulement claim was processed in the Chinese language. The Notice of Decision by the Director of Immigration, the Decision of the Board and the Form Call-1 and Order of this Court are all written in Chinese. It is not her claim that she could not communicate in Chinese or could not understand the above documents written in Chinese. It was her choice to switch to the English language in her Summons. The directions of this Court were given in English only to respond to her Summons in English. Hence, her explanation that she need time to find assistance in the English language to read and understand the letter and to file her appeal cannot be a valid explanation. In any event, in view of the very long delay, her second explanation is not credible.

9.  For the above reasons, I do not accept she has a reasonable explanation for the very substantial delay.

Prospect of the intended appeal

10.  The Applicant’s sole ground of appeal as stated in her supporting affirmation is that the Order was reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

11.  Her leave application was determined on paper without an oral hearing and she had no opportunity to make any oral submission. As stated in paragraph 1 of the Form Call-1, that decision was made after having considered the nature of the application, her grounds of application, the decision of the Board and all the papers. Paper determination is usually appropriate for such leave applications, particularly as in here where the Applicant had given detailed grounds of application consisting of three pages.

12.  As stated in paragraph 18 of the Form Call-1, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are 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 function of the court in a judicial review is to scrutinize the Board’s decision and intervene only for errors of law, procedural unfairness or irrationality in the decision: see Nupur Mst v Director of Immigration[2]. This Court has no fact finding functions in a judicial review. Even allowing the Applicant to address this Court and to recite her evidence could not assist her, if this Court was unable to find any errors of law, procedural unfairness and irrationality in the Board’s decision. All her grounds of judicial review had been considered in paragraphs 16 to 24 of the Form Call-1. The decision to refuse her leave application was made after rigorous examination of the Board’s decision with anxious scrutiny for errors of law, procedural unfairness and irrationality. Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review, I was not satisfied that there was any prospect of success in the Applicant’s intended judicial review. Despite full reasons having been given in the Form Call-1, the Applicant could not come up with any proper challenge of the Board’s decision or this Court’s decision. She has no arguable grounds of appeal. Her intended appeal has no prospect of success.

Prejudice to the respondent

13.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed 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 her 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. Granting her leave under the circumstances may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  The Applicant has no valid explanation for the very substantial delay. She has no arguable grounds of appeal and her intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, her application for extension of time to appeal is refused.