Re Le Thi Anh

CAMP 266/2022, [2023] HKCA 1048

On Appeal From [2022] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 266 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2708 OF 2018)

__________________

__________________

___________________

J U D G M E N T

___________________

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

1.On 8 March 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning her non-refoulement claim (“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.Even taking into account the General Adjournment Period (7 March 2022 to 11 April 2022), the applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 10 May 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 17 June 2022. 

3.On 22 July 2022, the applicant filed her summons in CAMP 266/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision dated 17 June 2022. This summons is treated as a renewed application for leave to appeal out of time against the JR Decision,  see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.In compliance with the directions made by the Registrar of Civil Appeals on 22 July 2022, the applicant lodged her written submissions on 5 August 2022.

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 4 March 2014. She surrendered to the Immigration Department on 26 May 2014 and on the same day, lodged a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her creditor Nam due to her default in repaying loans.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 660).

7.By a Notice of Decision dated 29 July 2016 and a Notice of Further Decision dated 12 September 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims.  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.The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 5 July 2018 and by its decision dated 22 November 2018, the Board dismissed the applicant’s appeal.  When the Board questioned her on details such as the profits of the business and interest on the loan, she changed her evidence and gave inconsistent accounts of the capital involved in the business [47].  The Board doubted the veracity of her evidence and rejected her case on the issue of credibility [42] – [47].  Further, the applicant’s dispute was personal and private in nature, with no state involvement.  In any event, internal relocation is a viable option to avoid her creditor.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 29 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  She did not advance any ground for her intended challenge in her Form or her supporting affirmation, save for saying that she would be harmed or even killed by the money lender and his subordinates if refouled as she did not have money to repay her debt.  She attached the Board’s decision in her supporting affirmation.

The JR Decision

10.The applicant did not request an oral hearing and the Judge disposed of her application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [13] - [18] of the JR Decision:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

16. The Board did not accept the applicant’s evidence on the facts of her case. In other words, she does not have any factual basis in support of her claim. There is no valid reason from the applicant to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

Application for extension of time to appeal the JR Decision

11.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 10 May 2022 for an extension of time to appeal.  That was dismissed by the Judge on 17 June 2022. Hence, the Summons to this court.

Discussion

12.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). 

13.As for (1), even after the end of the General Adjournment Period on 11 April 2022, the applicant did not file an appeal and delayed for 4 weeks before filing the summons for extension of time. Her delay was substantial.

14.As for (2), the reasons for the delay, the applicant did not explain why she failed to file her appeal after the court re-opened and took until 10 May 2022 to do so. In the Summons and supporting affirmation filed in this court, she only claimed that she did not receive the judge’s decision dated 17 June 2022 refusing extension of time to appeal.  We see no good reason for the applicant’s delay. 

15.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 either in her summons or in her affirmation. 

16.In her written submissions, she set out the procedural background of her claim, and claimed that the decision entailed significant implications for her.  She quoted some cases and contended that “high standards of fairness” applied to the determination of a non-refoulement claim, claiming that the Board had acted in a procedurally unfair manner without properly assessing her credibility. 

17.It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility and in any event, her problem only involved a private loan dispute with no state involvement, and internal relocation is a viable option to avoid her creditor.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  The applicant has failed to specify what was the procedural unfairness before the Board.  We see no grounds in this case.

18.We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

19.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 22 July 2022.

The applicant, unrepresented, acting in person