RE NGUYEN THI HA

CAMP 1/2022

[2023] HKCA 120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1127 OF 2021)

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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 16 September 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”) and dismissed her application. Under Order 53 r.3(4) 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.   The applicant did not lodge an appeal in time.   She filed an affirmation without a summons in the Court of First Instance on 28 October 2021 for extension of time to appeal against the JR Decision.   The Judge treated her affirmation as her application for extension of time for her intended appeal, which application was dismissed by the Judge on 26 November 2021.  

3.   On 3 January 2022, the applicant filed a summons in CAMP 1/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision of 26 November 2021.   It would be appropriate to treat the matter as an application for extension of time to appeal the JR Decision instead, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8]. 

4.   Pursuant to the directions made by the Registrar of Civil Appeals on 3 January 2022, the applicant should lodge her written submissions with the court on or before 17 January 2022 but she failed to do so. As further directed by the Registrar, in case the applicant failed to lodge her written submissions before the deadline, 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 national of Vietnam. She first entered Hong Kong illegally on 1 August 2014 and was arrested by police on 5 August 2014.   After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim alleging that if refouled, she would be harmed or killed by her creditor over her debt incurred on obtaining a loan for her inn business.   She further claimed that she would be harmed by her husband who blamed her for the threats to and harassments of the family due to her debt problem.   The factual background of this case was succinctly summarised by the Judge at [2] of the JR Decision ([2021] HKCFI 2795). 

7.   By a Notice of Decision dated 29 August 2016 and a Notice of Further Decision dated 20 December 2016, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].  

8.   The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).   The applicant attended an oral hearing on 6 April 2018 and by its decision dated 30 August 2018, the Board dismissed the appeal for the reasons set out at [49] to [82] of its decision.   The Board found that the applicant’s evidence of the money lending and the series of debt collection incidents, as well as the domestic violence inflicted by her husband due to the threats and harassments caused to the family by the applicant’s creditor, was consistent and credible in general.   However, the applicant’s problem is private and personal in nature without any state involvement and the extent and nature of injury sustained during the debt collection incidents and the domestic violence did not attain the minimum level of severity.  Relevant Country of origin information (“COI”) suggested that there is reasonable state protection and local non-government offer assistance to women suffering from domestic violence.   For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds. 

Repatriation to Vietnam

9.   The applicant did not proceed any further with her non-refoulement claim which was thus finally determined.   According to immigration records, she was repatriated to Vietnam on 20 November 2018.   On 5 February 2021 however, the applicant entered Hong Kong illegally again and was arrested by the police on 5 May 2021.   She was then transferred to the Immigration Department for investigation. 

The Director’s decision on the applicant’s request for a subsequent non-refoulement claim

10.   On 14 May 2021 and 30 June 2021, the applicant made a written request to the Director to make a subsequent claim.   The issue is whether this is covered by section 37ZO(2) of the Immigration Ordinance (Cap.115), essentially whether there is sufficient evidence that there has been a significant change of circumstances since her previous claim had been finally determined, or that such change when taken together with the material previously submitted for her previous claim would give the subsequent claim a realistic prospect of success.   On 18 May and 30 June 2021, the applicant provided information in which she alleged that upon her return to Vietnam in November 2018, she borrowed another sum of money in 2019 to open a restaurant from a creditor with a criminal background but later her restaurant business failed due to the Covid pandemic and she was unable to repay her loan.   When her creditor threatened her over her outstanding loan, she fled from Vietnam for Hong Kong. [5]

11.   By the Director’s decision dated 13 July 2021 (“the Director’s 2021 Decision”), the applicant’s request to make a subsequent claim was refused.   It was found that the applicant’s present claim was essentially the same as that of her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success. [6]

Application for leave to start judicial review

12.   On 11 August 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision dated 30 August 2018.   She did not provide any ground for relief in the Form or in her supporting affirmation. 

13.   As the applicant’s previous non-refoulement claim had been finally determined following her repatriation to Vietnam, and the present application was based on incidents of threats and assaults by her new creditor which was rejected in the Director’s 2021 Decision, the Judge treated the application as one in which she was seeking leave to apply for judicial review of the Director’s 2021 Decision. 

The JR Decision

14.   The applicant did not request an oral hearing and the Judge disposed of the application on paper.   After due consideration of the decisions of the Director’s 2021 Decision, the Judge refused leave for judicial review for reasons set out in [11] - [13] of the JR Decision:

“11.  On 11 August 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in either her Form or her supporting affirmation filed on the same day, nor did she request any oral hearing for her application.   As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge. 

12.  Even on the basis of the Applicant’s own case, the Director was in my view correct to find her alleged borrowing from another creditor for a restaurant business and her subsequent failure to make her loan repayment led to threats from both of her creditors did not amount to a significant change of circumstances since her previous claim had been finally determined, or that such change when taken together with the material previously submitted for her previous claim would give the subsequent claim any realistic prospect of success upon taking into account of the findings in the previous claim of the availability of state/police protection and reasonable internal relocation available to the Applicant upon her return to Vietnam to avoid or negate her subsequent claim as the Director was entitled to do so under Section 37ZO(3) of the Immigration Ordinance. 

13.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse her leave application. ”

Application for extension of time to appeal the JR Decision

15.   As mentioned earlier, the applicant failed to file a notice of appeal within time.   She filed an affirmation without any summons on 28 October 2021 in the Court of First Instance on for an extension of time to appeal. 

16.   Although the Registry wrote to her on 2 November 2021 informing her that she should make a proper application by way of a summons for extension of time to appeal, she did not respond.   Given that the applicant was legally unrepresented and in order to save time and costs, the Judge treated her affirmation as her application for extension of time for her intended appeal and to deal with her application on paper.   After due consideration of the available evidence, the applicant’s application was dismissed by the Judge on 26 November 2021.   Hence, the Summons to this court. 

Discussion

17.   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). 

18.   As for (1), the applicant was late by 4 weeks between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.   Her delay was substantial. 

19.   As for (2), the reasons for the delay, the applicant did not provide any reason in her affirmation.   The court file showed that the JR Decision was sent to her on 16 September 2021 at Castle Peak Bay Immigration Centre but it was returned as the applicant was not detained there.   On 30 September 2021, the court sent the JR Decision to Room B, 5/F, 171-173 Yu Chau Street, Sham Shui Po which was the applicant’s updated address; this was the address provided by the applicant in her summons dated 3 January 2022 to this court. [7]  However, it was returned marked “no such person”. The applicant failed to give any explanation why that was the case and has given no good reason for the delay. 

20.   The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.   The applicant did not provide any grounds of appeal against the JR Decision, and the Judge did not find any error on the part of the Director. 

21.   In the Summons and supporting affirmation filed in this Court, the applicant had failed to provide any valid ground of her intended appeal against the JR Decision save for repeating her claim that she would face risk of harm from her creditor if refouled for her failure to repay the loan. 

22.   It is clear from the Director’s 2021 Decision that the applicant failed to establish her case under section 37ZO(2) of the Immigration Ordinance (Cap.115) under which she was obliged to provide sufficient evidence to satisfy the immigration officer that there has been a significant change of circumstances since her previous claim has been finally determined, or that such change when taken together with the material previously submitted for her previous claim would give the subsequent claim any realistic prospect of success. 

23.   As rightly pointed out by the Judge at [12] of the JR Decision, the applicant’s previous claim was thoroughly considered by the Director and the Board, her indebtedness was personal and private in nature, and reasonable state protection was available.   Apart from the identity of the new creditor, there has been no change in those relevant circumstances.  We agree with the Judge that the Director is entitled to reject her request to file a subsequent claim. 

24.   In all, we are satisfied that the Judge had reviewed the Director’s 2021 Decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision. 

25.   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 3 January 2022.