PHAM THI HUE v. TORTURE CLAIMS APPEAL BOARD

CAMP 49/2024, [2024] HKCA 699

On An Intended Appeal From [2024] HKCFI 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 49 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1467 OF 2019)

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JUDGMENT

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

1.  On 18 March 2024, the Applicant took out a summons with a supporting affirmation to apply for leave to appeal against the order of Fung J (“the Judge”) dated 8 March 2024 refusing to grant an extension of time to appeal against an earlier order of the Judge dated 7 February 2024 (“the Order”), whereby the Judge refused to grant to the Applicant leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2017.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam.  She entered Hong Kong illegally on 2 August 2015, and surrendered herself to the Immigration Department on 6 August 2015.  She raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a creditor over her unpaid debts.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2024] HKCFI 411).

5.  By a Notice of Decision dated 25 January 2017, 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”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 24 May 2019, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found that the Applicant’s evidence to be unbelievable that her presence and response to the Board was not consistent with a person who had suffered the claimed ordeal committed by her lender and followers, that the delay in her raising a claim for protection in Hong Kong after staying and working in Shenzhen for more than a year undermines the genuineness of her claim, and that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

7.  On 30 May 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  No ground of review of the Board’s Decision was given in the Form 86.

JUDGE’S DECISION

8.  On 7 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“11. 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 if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

12.       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.”

9.  On 1 March 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  On 8 March 2024, the Judge refused the Applicant’s application, holding that the Applicant had no valid explanation for her delay and there was no merit in her intended appeal.

THIS APPLICATION

10.  By a summons taken out on 18 March 2024, the Applicant applied for leave to appeal against the decision of the Judge given on 8 March 2024.  In her supporting affirmation filed on the same date, the Applicant stated that there was a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.”.

11.  In her written submissions dated 28 March 2024, the Applicant complained that the Board had under-estimated the risk of harm, torture or ill-treatment to her in Vietnam, the decisions of the Director and the Board were wrong, the decision of the Director was based on speculation or guesswork and was unreasonable, and her case had not been determined fairly. She also alleged that there was a lack of freedom in Vietnam.

DISCUSSION

12.  Following the approach this Court has adopted 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 an extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

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

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

17.  The Applicant has failed to identify any error in the Judge’s decision of 7 February 2024, or raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons of 18 March 2024 is dismissed.

20.  Although the Applicant’s written submissions are written in Chinese, this judgment is written in English because the decision below and the Applicant’s summons and affirmation of 18 March 2024 filed in support of the application are all written in English.  If required, the Applicant may apply to the court for this judgment to be orally interpreted to her by a Vietnamese interpreter at a mutually convenient time within the court’s premises.

The Applicant, acting in person