RE LUU THI TUYET LAN

CAMP 552/2021

[2022] HKCA 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1149 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By a summons dated 7 December 2021, the applicant applied to this Court for extension of time to appeal against the order made by Deputy High Court Judge CP Pang’s (“DHCJ Pang”)  dated 28 January 2021, refusing her application for extension of time as well as her application for leave to apply for judicial review ([2021] HKCFI 202)  (“Leave Decision”). On 30 November 2021, Deputy High Court Judge P Li (“DHCJ Li”)  dismissed her earlier application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3541)  (“EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 6 December 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 14 October 2016 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Vietnam.  She claimed to have entered Hong Kong illegally on 28 December 2015 from Shenzhen, China and surrendered to the Immigration Department on 5 January 2015.  By way of written representations dated 3 February 2016 and 11 February 2016, she made a non-refoulement claim on the basis that she would be harmed or killed by her creditor if she returned to Vietnam.  Details of the applicant’s claim were summarised by DHCJ Pang at [1] - [3] of the Leave Decision.

5.  By a Notice of Decision dated 14 October 2016, the Director rejected her non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  On 14 November 2016, the applicant appealed against the Director’s Decision to the Board.  As she was around two weeks late in filing her notice of appeal, the Board dismissed her application for leave to appeal out of time on 6 December 2017.  Although she claimed that she was sick on the day she went to file her appeal, the Board noted that there was no medical evidence in support of this claim and her explanation appeared to only cover one day of sickness.  As she failed to explain her delay and had shown no special circumstances pursuant to section 37ZT(3)  of the Immigration Ordinance, Cap 115, the Board disallowed her late filing of the Notice of Appeal.

The Leave Decision

7.  On 20 June 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  However, she failed to provide any ground in support of her application.  By that time, she was over three months late with her application for leave to apply for judicial review.  As she did not make any request for oral hearing, the applicant was considered by DHCJ Pang on paper.

8.  By the Leave Decision, DHCJ Pang refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [17] of the Leave Decision.  In gist, DHCJ Pang considered that although the Board did not consider the merits of the applicant’s case as required in Re Qasim Ali [2019] HKCA 430, having reviewed the Director’s Decision, the applicant’s alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm. Her fear, if any, were not real or well founded and did not reach the minimum level of severity to justify protection.  The applicant provided no medical evidence supporting her alleged sickness and there were no special circumstances in her case to suggest that it would be unjust not to allow the late filing of the Notice of Appeal to the Board.  Accordingly, DHCJ Pang refused to grant extension of time to the applicant and dismissed her application for leave to apply for judicial review.

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 4 June 2021, the applicant filed a summons (“EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was almost four months late with her intended appeal.  In her supporting affirmation, she contended that she did not receive the Leave Decision.

11.  By the EOT Decision, DHCJ Li did not accept the applicant’s explanation for delay.  She failed to update the Court with her new address and accordingly, she must bear the consequence of any problem in the mail because of the changes.  DHCJ Li also noted that in disallowing the late filing of the Notice of Appeal, the Board had not considered the merits of the applicant’s case.  Despite this irregularity, DHCJ Li considered that as the factual background before the Board and DHCJ Pang was identical; had the Board considered the merits, it would be inevitable that the Board would come to the same conclusion as DHCJ Pang.  In the circumstances, DHCJ Li held that it would be futile to quash the Board’s Decision and remit it for consideration; and having considered all relevant factors, the applicant’s application for extension of time to appeal was refused.

The Present Application

12.  By a summons and supporting affirmation both filed on 7 December 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  However, she did not put forward any ground of appeal and only contended that she received the decision late.

13.  Contrary to the directions given by the Registrar of Civil Appeal dated 7 December 2021, the applicant did not lodge any written submission in support of her appeal.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that a delay of three months is substantial.  We also agree with DHCJ Li that the applicant failed to provide good reason for her delay. As such, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  As the applicant failed to provide any ground of appeal, her intended appeal is a non-starter and must be dismissed on this basis alone.  Although the Board did not consider the merits of her claim in refusing her application for late filing of her Notice of Appeal, DHCJ Pang had nevertheless reviewed the Director’s Decision and considered the merits of her case, before coming to the view that there was no prospect of success in her intended application for judicial review.  We see no basis to disturb the Leave Decision.

18.  Accordingly, her intended appeal has no prospect of success and it will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 7 December 2021 dismissed.