RE NGUYEN THI CHIEU

CAMP 146/2025, [2026] HKCA 931

On intended appeal from [2024] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 146 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 2051 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 Bruno Chan (“the Judge”)  dated 19 September 2024[1] dismissing her application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”)  dated 27 June 2019 dismissing her appeal against the decisions of the Director of Immigration (“the Director”)  dated 10 August 2017 which rejected her non-refoulement claim.

3.  The applicant has filed a supporting affirmation and a written statement attached to support her application.  

4.  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.

5.  The applicant is a national of Vietnam aged 66.  She was arrested by the police on 14 December 2015, after entering Hong Kong illegally.  The applicant lodged a non-refoulement claim based on fear of being harmed or killed by her creditor and her associates due to her inability to repay a loan.  Details of the applicant’s backgrounds and claim and the arguments advanced before the Board were set out in the Board’s decision and summarized by the Judge in [2] to [5] of the Form CALL-1.  We shall not repeat them.

6.  The Director rejected the applicant’s claim, having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5].  

7.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing held on 29 March 2019. By its decision given on 27 June 2019, the Board dismissed the applicant’s appeal.

8.  In gist, the Board doubted the credibility of the applicant’s claim in light of the material inconsistencies between the account she gave to the Director and her evidence before the Board.  The Board also found that, even on the applicant’s case, the assault did not attain the minimum level of severity and the future risk of harm was low, and did not meet the legal requirements of the applicable grounds.  The Board further found state protection and internal relocation option were reasonably available, which would negate or reduce any risk that the applicant might face.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed her appeal.  

9.  On 18 July 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not provide any grounds for seeking relief.

10.  The Judge dealt with the application on the papers.  By a Form CALL-1 dated 19 September 2024, the Judge dismissed the application for leave to apply for judicial review.  The Judge held that the intended judicial review had no reasonable prospect of success in that the Director and the Board had correctly found the risk of harm in the applicant’s claim, even if real, was a localised one and internal relocation options were reasonably available to her, and there was no public law error in the Board’s decision.  

11.  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 20 March 2025, which was more than five months after the expiry of the appeal period, the applicant filed a summons together with an affirmation to apply for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing on 10 July 2025, and by his decision handed down on 24 July 2025[6], refused the application. 

12.  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. 

13.  The applicant was late by more than five months, which is a serious delay.  In the application made to the Judge, the applicant stated in the affirmation that she did not receive the letter from the court and was only informed by the Immigration Department that her application had been refused.  In the present application, the applicant did not offer any explanation for the delay.  As pointed out by the Judge, the Form CALL-1 and the court order were mailed to the address provided by the applicant and had not been returned by the Post Office.  We agree with the Judge that in the absence of evidence to corroborate the applicant’s assertion that the court’s order and decision had not reached her at the reported address, the delay has not been satisfactorily explained.  In the circumstances, the applicant has to show that her intended appeal enjoys a real prospect of success.

14.  When considering 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]. Relevantly, 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.

15.  The present summons and the accompanying affirmation do not contain any grounds to support the application.  In the Statement lodged together with the present summons, the applicant stated that (1)  the creditors and gangsters in Vietnam are cruel and violent and her life would be seriously threatened or she might even be killed; (2)  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 her people will locate her 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, the Board had assessed that the risk of harm to the applicant in Vietnam was low, and further found that the applicant’s claim did not satisfy the requirements of the appliable grounds, state protection was available and internal relocation was viable.  The applicant has not identified any error in the Board’s assessment and findings.  This being the case, there is no basis to support the assertions made in the Statement.  Neither is there any proper legal basis for the court to judicially review the Board’s decision.  Secondly, the applicant has not pointed to any error in the Judge’s decision.  There is no basis for this Court to disturb the Judge’s refusal of leave to apply for judicial review.

17.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 7 August 2025.