Re Pham Thi Hoa

CAMP 436/2021

[2022] HKCA 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 436 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2756 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  29 August 2022

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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.On 14 June 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA)  judgment of 11 February 2022 (“the Judgment”)  ([2022] HKCA 220). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 13 July 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 1999).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 11 March 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was late for over two months in taking out her application for leave to appeal to the Court of Final Appeal.

5.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.In her Notice of Motion, the applicant claimed that her life would be seriously threatened if she returned to Vietnam as the creditors and gangsters in Vietnam were cruel and violent and that she would be tortured, beaten or killed.  She also asserted that internal relocation would be completely unfeasible as there would be many difficulties and obstacles she would have to face and her health was not good.  She also claimed that since she was not an active person, this might disadvantage her in the labour market.  She further complained that the Director of Immigration did not consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

7.In her supporting affirmation filed on 14 June 2022, the applicant stated that the decision made by the High Court had been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.  She also asserted that she understood there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review and that the merits of this alleged ground of appeal constitute sufficient justification for the Court to exercise its discretion in allowing her appeal out of time.  However, she did not specify what this alleged ground of appeal was.

8.Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

9.At the outset, it is noted that the applicant failed to provide any reason, let alone any good reason, for her substantial delay of over two months in making her application for leave to appeal to the Court of Final Appeal.  More importantly, her intended appeal has no merit at all.  The matters raised in her Notice of Motion and supporting affirmation are all general and bare allegations without any specific particulars or explanation.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Clearly, her arguments do not constitute proper grounds of appeal.

10.Further, the allegations made in her Notice of Motion are all directed to the Director of Immigration and the Board and she failed to identify any specific error in the Judgment with sufficient particulars.  The applicant already had ample opportunities to present and clarify her case before the Court below and this Court.  The applicant has also failed to identify any specific error in the Judgment with particulars.

11.In any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

12.Further, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

13.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 14 June 2022 is dismissed.

The applicant acting in person