Re v. Thi Hang

CAMP 260/2022, [2023] HKCA 1046

On Appeal From [2021] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 260 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 276 OF 2021)

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J U D G M E N T

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

1.On 23 June 2021, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant for leave to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap.4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 20 July 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 December 2021.

3.On 18 July 2022, the applicant filed her summons in CAMP 260/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 18 July 2022, the applicant should lodge her written submissions in support of the Summons on or before 1 August 2022.  She failed to do so.  The Registrar further directed that in case the applicant fails to lodge her written submissions as directed, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is a national of of Vietnam.  She entered Hong Kong illegally on 8 June 2014 and was arrested by the police on 23 June 2014.  She was then referred to the Immigration Department for investigation.  On 29 June 2014, she raised a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her creditors for failing to repay her loans.  When her then 15-year old daughter entered Hong Kong illegally on 20 May 2015, the applicant also raised a similar claim for her on the same basis, which was assessed and determined jointly with hers.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2021] HKCFI 1816).

7.By a Notice of Decision dated 22 September 2017, the Director of Immigration (“the Director”) decided against the claims of both the applicant and her daughter.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.On 6 October 2017, the applicant and her daughter appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  By then her daughter reached the age of 19, and she withdrew her appeal, thus leaving only the applicant’s appeal. 

9.The applicant attended an oral hearing on 25 March 2019 and by its decision dated 20 March 2020, the Board dismissed the applicant’s the appeal.  For the reasons set out at [43] to [57], the Board found that the applicant’s evidence was evasive and inconsistent and it was not established that she faced any serious risk of harm from the creditors.  Even on her own account of events, her alleged problem only involved a private loan dispute with no state involvement and she did not sustain any serious harm or injury that attained the minimum level of severity that would qualify her for non-refoulement protection.  In any event, relevant country of origin information (“COI”) suggested that there is state/police protection, and internal relocation is a viable option for her to avoid her creditors.  For the aforesaid reasons, the applicant's non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.On 3 March 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1) of the RHC requires that an application for leave to apply for judicial review be made promptly and in any event within 3 months from the date when grounds for the application first arose.  By then the applicant was out of time with her application by more than 8 months.  The applicant did not advance any ground for her intended challenge in the Form 86 or in her supporting affirmation.

The JR Decision

11.The applicant did not request an oral hearing and the Judge disposed of her application on paper.  After due consideration of the decision of the Board, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application with reasons set out in [12] - [16] of the JR Decision:

“12. In the Applicant’s case, a delay of more than 8 months must be considered as very substantial and excessive, for which she did not provide any explanation in her affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good reason for her serious delay.

13. As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forth any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

12.As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 20 July 2021 for an extension of time to appeal.  That was dismissed by the Judge on 22 December 2021.  Hence, the Summons to this court.

Discussion

13.In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.As for (1), the applicant was late by some 13 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was not unduly serious.

15.As for (2), the reasons for the delay, she merely stated in her affirmation that she did not receive the JR Decision.  There were no details or documentary evidence in support, nor did she attend the hearing of her summons to offer any explanations.   There was therefore no good reason for her delay.

16.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant had failed to put forward any proper or valid draft or proposed grounds of appeal, or advance any particulars of any error in the JR Decision, save for saying that she would be harmed or even killed by her creditors if refouled and she urged the court to review her case with regard to her human rights.  She complained that the Judge did not give her an opportunity to clarify her case and situation in her home country. 

17.However, she had not provided any grounds in her filed documents, nor did she request an oral hearing for her application for an extension of time.  Thus, her complaint plainly cannot stand.

18.The applicant attached a statement dated 18 July 2022 with the Summons (“the Statement”).  The complaint stated in Statement against the Director is vague and general and did not add anything to the applicant’s application.  Further, the Director’s decision was superseded by the Board’s decision and is not susceptible to judicial review, see: Re Moshsin Ali [2018] HKCA 549.

19.It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility.  Even on her own account of events, her alleged problem only involved a private loan dispute with no state involvement and she did not sustain any harm or injury that attained the minimum level of severity that would qualify her for non-refoulement protection.  Relevant COI suggested that there is reasonable state protection and she may relocate to other parts of Vietnam to avoid her creditors.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

20.We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and has applied the right test as set out in AW v Director of Immigration [2016] 2 HKCA 393 in refusing to grant an extension of time for the application to apply for leave for judicial review and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

21.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 July 2022.

The applicant, unrepresented, acting in person