RE HOANG KIM HOI

CAMP 537/2021

[2022] HKCA 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 537 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1535 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I. Renewed application for extension of time to appeal

1.  On 3 August 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 26 July 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’)  dated 24 January 2018 rejecting her non-refoulement claim. 

2.  In his decision of 13 May 2021, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 29 June 2021 before the Judge requesting an extension of time to appeal.  The Judge on 23 November 2021 rejected the applicant’s application.    

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 29 November 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application was made within time.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation, statement and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.  Briefly stated, the applicant is a Vietnamese national.  The applicant claimed that she fled Vietnam because in November 2013, some men came to her home looking for her mother; they threatened to kill her or force her to work as a prostitute unless the applicant repaid her mother’s loan within one month.  She entered Hong Kong illegally on 3 April 2014 and was arrested by police on 23 April 2014 for using a forged identity card.  On 21 December 2017, she filed her non-refoulement claim form after her discharge from prison.

III.  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 24 January 2018.  The decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

8.  The applicant appealed against the Director’s decision to the Board.  An oral hearing was conducted on 24 May 2018.  The Board dismissed the applicant’s appeal on 26 July 2018, and the Director’s decision was confirmed.  The Board held that the applicant’s claim was not credible and she had fabricated and concocted her evidence to advance her claim.  Her claim based on all applicable grounds was  rejected.

V.  Decision of the Judge

9.  In his decision dated 13 May 2021, the Judge held that he did not find any error of law or procedural unfairness, whether in the Director’s or the Board’s decisions.  Nor was there any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

10.  In his decision dated 23 November 2021, the Judge held that the applicant’s delay of one month is substantial.  The Judge further noted that the decision refusing leave for judicial review was sent on the same day as it was handed down to the applicant’s last reported address without being returned.  The fact that she may be ignorant of the court rules governing the time limit of appeal is not an excuse for their non-compliance.  More importantly, the Judge held that the applicant had failed to put forth any proper grounds of appeal. 

VI.  Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

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

VII.  Analysis

1)  Length of delay and reasons for the delay

12.  The delay of about one month is significant.  While the applicant is unrepresented and may lack financial means to seek proper legal advice regarding her intended appeal, this does not constitute a good reason for delay.  Be that as it may, we will focus on the merits of the intended appeal.

2)  Prospect of the intended appeal

13.  The applicant filed a statement and written submissions in which she said that her life would be threatened if she were returned to Vietnam.  She further stated that the Director had failed to consider her human rights under the Basic Law and various international conventions, and that the Board had acted in a procedurally unfair or Wednesbury unreasonable manner.

14.  In our judgment, the applicant does not have any prospect of success in her intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review and extension of time to appeal. 

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

VIII.  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 29 November 2021.