Tran Thi Thuy Quynh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 275/2021

[2021] HKCA 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 275 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1641 OF 2018)

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BETWEEN

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Before:  Hon G Lam and Chow JJA in Court

Date of Written Submission:  3 August 2021

Date of Judgment:  8 November 2021

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J U D G M E N T

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

1.By summons dated 23 July 2021, the Applicant applied to this Court for leave to appeal the order of Deputy High Court Judge K.W. Lung (“the Judge”)  dated 12 July 2021 dismissing the Applicant’s application for extension of time to appeal the Judge’s earlier order dated 2 June 2020 refusing to grant leave to apply for judicial review.

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

BACKGROUND

3.The Applicant is a national of Vietnam.  She entered Hong Kong illegally and was arrested on 7 November 2016.  She lodged a non-refoulement claim on 18 November 2016.  In essence, the Applicant’s claim was based on an alleged fear that if she returned to Vietnam, she would be at risk of being harmed or killed by a creditor called Hai because she was unable to repay a loan due to him.  Details of the Applicant’s claim have been summarised by the Judge at §§3-5 of the CALL-1 Form ([2020] HKCFI 1007).

4.By a Notice of Decision dated 24 October 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).

5.In due course, the Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”).  On 16 May 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).

6.The Applicant subsequently filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  On 2 June 2020, the Judge refused to grant the Applicant leave to apply for judicial review (see Form CALL-1 at §19). The Judge’s reasons for his decision are as follows:

“[15]  It is quite clear that the Adjudicator was aware of the atrocities of loan sharks in forcing debtors to repay the loan, which is common practice for loan sharks in any other places. Having considered her evidence, the Adjudicator considered that her case did not fall within the context of section 37U (1)  of the Ordinance or the BOR3 risk. In my view, he is entitled to form his view on the undisputed facts of the applicant’s case. The first ground fails.

[16]  The Adjudicator was also alive to the fact that the Vietnamese police are corruptive. He had also taken into consideration that the Vietnamese government is improving its combat on corruption. I have noted that in the Board’s Decision, the Adjudicator had not set out the Country of Origin Information (‘COI’), upon which he relied to support the above view. However, since the Board had taken the highest of the applicant’s case and found that she had no merit, this issue will not assist her case. He had also noted that the applicant had not reported the assault by Hai’s men to police. There was no evidence from the applicant that her case would not be accepted by the police in Vietnam.

[17]  As the Board found that on her own facts, she would not be subjected to any of the risks mentioned above, it would not be necessary for the Board to consider further issue such as internal relocation. However, the Board had taken this issue on board. The applicant has the burden of proof on internal relocation. She had stated her case of living in her relative’s place for about one year without incident. There is no evidence from the Board’s Decision that she had raised the issue that she would require permission from the official of the commune or that she would be unable to work if she lived away from her own location. The applicant is not allowed to raise it at this stage. The second ground fails too.

[18]  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

THE JUDGE’S EXTENSION DECISION

7.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  No notice of appeal was filed against the Judge’s order of 2 June 2020 within the 14-day period.  On 14 July 2020, the Applicant filed a summons seeking extension of time to appeal.

8.The Judge considered that the Applicant’s proposed grounds of appeal in support of the application were not valid grounds to show that she had any reasonable chance of success in her intended appeal ([2021] HKCFI 1896, at §10).

9.Accordingly, on 12 July 2021, the Judge refused to extend time for the Applicant to appeal, and dismissed her summons of 14 July 2020.

THIS APPLICATION

10.By the present summons dated 23 July 2021, the Applicant applied to this Court for leave to appeal the order of the Judge dated 12 July 2021.  In her supporting affirmation also of 23 July 2021 and written submissions dated 3 August 2021, the Applicant repeated her fear if refouled back to Vietnam.

DISCUSSION

11.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §3 – §8, we would treat the present application as a renewed application for extension of time to appeal the Judge’s order of 2 June 2020.

12.In considering whether to extend time for appeal, the court will take into account the length of the delay, the reasons for the delay, the merits of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success in the intended appeal, not merely a reasonable prospect of success: see Tang Chai On v Tang Sing Ki (supra)  at §9.

13.The prospect of success of the intended appeal is important: the court will not extend time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702 at §19.

14.The court’s approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.The delay of 28 days in this case is not a short one, and the Applicant has not provided any good explanation for the delay. More importantly, the Applicant has not pointed to any specific errors in the Judge’s decision dated 2 June 2020, or raised any viable grounds of appeal against the Judge’s decision in her summons, supporting affirmation, or written submissions,

16.The Applicant’s intended appeal has no merits, or reasonable prospect of success.

DISPOSITION

17.Accordingly, the Applicant’s application for extension of time to appeal is refused, and the Applicant’s summons of 23 July 2021 is dismissed.

The Applicant, unrepresented, acted in person