RE DO THI HA

CAMP 220/2022

[2022] HKCA 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 220 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 198 OF 2019)

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JUDGMENT

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Hon Chu JA (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 Lung (“the Judge”) dated 18 November 2021[1] refusing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written statement to support her application. Despite the directions given by the Registrar of Civil Appeals, she has not put in any written submission.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 62. She entered Hong Kong illegally and surrendered to the Immigration Department on 1 September 2014. She later raised a non-refoulement claim based on her fear of being harmed or killed by her creditor due to her inability to repay her debt. The details of the applicant’s claim were set out in the decision of the Director at [8]. We will not repeat them.

6.  By his decision dated 23 December 2016, 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] grounds.

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 17 August 2018, during which the applicant gave evidence and answered questions put by the Board. By its decision dated 18 January 2019, the Board dismissed the appeal. The Board found the applicant’s story regarding the borrowing of the loan and the series of loan collection incident to be internally consistent. The Board considered the extent and nature of the injuries suffered by the applicant did not attain a minimum level of severity, and her problem was a purely private matter. The Board found, on the totality of the evidence, that the applicant failed to establish a genuine and substantial risk of being subjected to torture, ill-treatment, persecution or deprivation of life. The Board also considered state protection is available which will negate or reduce any risk that the applicant might face. The Board concluded that the applicant’s claim failed on all applicable grounds.

8.  On 22 January 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Director’s decision. She only repeated her claim but did not put forward any specific ground for seeking relief.

9.  The Judge considered the application on paper. By a Form CALL-1 dated 18 November 2021, he refused to give leave to apply for judicial review for the reasons set out in [12] to [17]. In summary, the Judge had regard to the fact that the applicant had not put forward any viable ground to support her application. The Judge also did not find any error of law, irrationality or procedural unfairness in the Board’s findings and decision. The Judge held that the intended judicial review had no prospect of success and dismissed the application.

10.  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.

11.  By a summons filed on 12 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 13 May 2022[6] refused the application.

12.  On 29 June 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court 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.

14.  The applicant was more than four months late when she made the application for extension of time. She explained in the affirmation filed before the Judge that she did not receive the Court’s letter. As the Judge pointed out, the Form CALL-1 was sent to the applicant on 18 November 2021 to the address she provided to the Court. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

15.  In assessing 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].

16.  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 Board afresh as if it is a fresh application for judicial review.

17.  In the present case, the applicant has not identified any error in the Judge’s decision or reasons. Nor has she put forward any grounds to support her intended appeal.

18.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

19.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 29 June 2022.