TA THANH MAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 375/2020

[2022] HKCA 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 375 OF 2020

(ON APPEAL FROM HCAL NO 1915 OF 2018)

________________________

________________________

_______________________

J U D G M E N T

_______________________

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 17 March 2021 ([2021] HKCA 289). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge K W Lung dated 4 August 2020 ([2020] HKCFI 1846) refusing to grant leave for the applicant to seek judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 25 November 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 29 November 2021. Having read her submissions, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 25 June 2015 and was arrested on 6 July 2015. On 30 November 2015, she raised a non‑refoulement claim on the basis that she will be harmed or killed by her creditor if she returns to Vietnam.

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 12 July 2016 and 15 June 2017. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 25 August 2017.

5.  She filed a Form 86 on 12 September 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ K W Lung dismissed the leave application on 4 August 2020.

6.  On 17 August 2020, the applicant filed a notice of appeal against the judge’s decision. The appeal was dealt with by the Court of Appeal on paper without an oral hearing as the applicant consented to the disposal of her appeal on paper. The appeal was dismissed by the Court of Appeal on 17 March 2021. The applicant filed a Notice of Motion on 25 November 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  If the applicant is repatriated, she will be killed by the creditor.

(2)  The Immigration Department did not consider her human rights under Basic Law, Hong Kong Human Rights and Democracy Act, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

8.  In her written submissions, she reiterated the problems she faced in Vietnam and the grounds stated in the Notice of Motion. She further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board had acted in a procedurally unfair manner without properly assessing her credibility.

Analysis and disposition

9.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

10.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

11.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

12.  The applicant was late for more than 7 months in filing her Notice of Motion. The delay is very substantial. She explained in her affirmation that the delay was caused by the fact that she did not receive the order and judgment from the court. The court had sent a notice of handing down the judgment by post to the applicant on 11 March 2021, notifying her that judgment would be handed down on 17 March 2021 and that the judgment would be uploaded to the Judiciary website. A copy of the judgment was also sent to her by post on the day when the judgment was handed down and mail has not been returned by the post office. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his or her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Besides, the applicant was informed that the judgment would be available on the Judiciary website. Under these circumstances, she does not have a good ground for the court to grant extension of time for her to seek leave to appeal.

13.  In any event, the applicant’s complaint against the Immigration Department is a new ground which was not previously raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal. It is not open to her to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

14.  Furthermore, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in its decision. She has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

15.  For the above reasons, we refuse to extend time for the applicant to apply for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 25 November 2021.