RE LUONG THI DAN

CAMP 172/2019

[2020] HKCA 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 172 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1013 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 11 December 2018 (“the Decision”)[1], Campbell Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 September 2017.  In the Board’s decision, the decisions of the Director of Immigration (“the Director”) dated 14 January 2016 and 4 January 2017 rejecting the applicant’s non - refoulement claim were upheld.

2.  On 3 May 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 16 July 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 25 July 2019, the applicant sought leave from this Court to appeal out of time against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 July 2019, the applicant was directed to lodge her written submissions in support of her summons on or before 15 August 2019.  The applicant lodged her written submissions as directed. 

5.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, 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 Vietnam.  She came to Hong Kong as a visitor on 8 March 2005 and was permitted to stay until 22 March 2005.  She did not depart and overstayed since 23 March 2005.  She was arrested by the police on 5 January 2006 and was repatriated to Vietnam on 18 January 2006.  She departed Vietnam again in February 2014 for China and then sneaked into Hong Kong.  She was arrested by the Immigration Department on 9 January 2015 and she subsequently lodged her non-refoulement claim by way of written representation on 15 January and 19 January 2015 on the basis that if she were to return to Vietnam, she would be harmed or even killed by the Vietnamese authorities due to the evasion of her two sons from the compulsory national military service.  The factual background was succinctly summarized by the Judge at the Decision at [4].

7.  By two notices of decision dated 14 January 2016 and 4 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  After the hearing on 24 August 2017, the Board dismissed the appeal on 13 September 2017.  For the reasons and analysis stated in [22] of the Board’s decision, the Board found that the applicant was not a genuine asylum seeker as she did not file her non-refoulement protection claim until one year after she came to Hong Kong when she was arrested by the Immigration Department.  The applicant agreed that she was a well-educated person and she admitted to the Board that she was not afraid of the officials and she had a heated argument with the officials who came to locate her elder son in Vietnam.  It was not disputed that the applicant had not been arrested or assaulted after the heated argument and she had never been tortured in Vietnam.  The Board found that it was only a bare threat from the officials that if she failed to surrender her son they would arrest her instead and her fear of arrest by the local authorities was a sheer exaggeration on her part.  The relevant COI suggested that state protection is available upon her return to Vietnam.  Internal relocation was also a reasonable option to get away from the local officers.  For the aforesaid reasons, the Board rejected her case on all applicable grounds. 

9.  On 5 December 2017, the applicant filed Form 86 together with her supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  She did not provide any grounds for her intended challenge save for saying that if she were to return to Vietnam, she would be imprisoned and brutally beaten up.

The Judge’s decisions

10.  The applicant did not ask for an oral hearing.  By the Decision made on 11 December 2018, the Judge decided to refuse leave for the applicant to apply for judicial review after her due consideration of the Director’s and Board’s decisions. The reasons were duly set out at [10] to [11] of the Decision:

“10. There were no grounds of review. The Applicant asks for a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of her intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  Given that the whole family is now here in Hong Kong and the basis of their individual claims is different, it would appear that the Adjudicator had reasonably found that the reason for her presence in Hong Kong was not to seek protection from the Vietnamese statement but to seek re location to Hong Kong with her family.  There is therefore no criticism of his determination, which was open to him on the facts and eminently reasonable.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 25 December 2018.  On 3 May 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

12.  In her supporting affirmation, she advanced the following grounds of her intended appeal:

(1)  The Judge favored the Board’s decision one-sidedly without any sound reason.  The Board relied heavily on the fact that the applicant did not file her non-refoulement claim upon her arrival in Hong Kong and her purpose of coming to Hong Kong was to stay here rather than to avoid persecution.  The applicant contended that it should not be a significant consideration in assessing her case.

(2)  The applicant referred to [10] of the Decision that the Judge did not explain sufficiently why her case was rejected on all applicable grounds and why the Adjudicator found no procedural irregularity, unfairness or unreasonableness.  However, the Adjudicator only focused on insignificant facts and the Judge ignored it and even concurred with the Adjudicator. 

(3)  The applicant referred to [19] of the Board’s decision that her case clearly related to torturous persecution as the Vietnamese government officials had threatened to kill the applicant because her sons had evaded military service. The Adjudicator had failed to examine those important facts and focused on the insignificant facts.

(4)  The Judge failed to rectify the Board’s decision which was grossly unreasonable.  The Judge did not even find any impropriety or unfairness in the Board’s decision.

(5)  The Judge launched an attack on the applicant’s character and found that the purpose of her stay in Hong Kong was to reunite with her family.  Thus, the Judge was biased when dealing with her application.

13.  The summons was heard on 16 July 2019 and by the Leave Decision made on the same day, the Judge refused the application for leave to appeal out of time.  At the hearing, the applicant explained that notwithstanding she had received the Order on time, the documents were in English which she could not understand.  Rather than raising the issue with Immigration staff when she reported under her recognizance, the applicant waited until a fellow Vietnamese refugee was able to inform her that her application had been refused.   Upon the questioning by the court, the applicant admitted that she had raised the issue with an Immigration staff who told her that she was out of time.  She further said that she had been told to come to Admiralty (the High Court) but had been told by staff that there was nothing she could do.  The Judge did not believe any of these incidents happened or that she was told by High Court staff that there was nothing she could do. 

14.  The applicant also complained that it was incumbent upon the court to communicate with her in Vietnamese and to inform her of when and how to lodge an appeal.  The Judge rightly rejected her contention as it was the duty of a litigant to give the court an address to which correspondence or notice could come to her attention in a timely manner and to act promptly if she wanted to proceed.  The consequences of any delay arising from failing to take swift action upon receipt of the Order of the court would fall upon her. 

15.  The Judge went on to say that even if the court did accept the reasons given for the delay, which it did not, and the language difficulties faced by the applicant, her case was still bound to fail on the more important issue i.e. the prospect of her intended appeal.   

16.  The Judge did not deal with the grounds of appeal as set out in the applicant’s affirmation and focused on the oral submission of the applicant at the hearing that she “simply reiterated more than once that she had been told she could appeal” and thus concluded at [9] of the Leave Decision that the underlying application had no merit and there were no grounds of review and no compliant before the court as to the Decision that there was nothing before the court to indicate any prospect of success in the intended appeal.

The renewed application

17.  On 25 July 2019, the applicant filed a summons seeking leave to appeal against the Decision out of time.  In the present application, the applicant did not provide any grounds of appeal against the Decision in her documents advanced before this Court and merely repeated the factual background of her case as put forward before the Judge in the hearing below. 

18.  Notwithstanding so, as the applicant had put forwards 5 grounds of appeal against the Decision in her affirmation for her out of time application to appeal against the Decision and they had not been dealt with by the Judge, we would treat those grounds as grounds of her intended appeal for the present application and we would deal with them accordingly.

Legal principles

19.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

20.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

21.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

22.  The applicant was late for more than 4 months in taking out the summons for an extension of time to appeal against the Decision and such delay was substantial.  We agreed with the Judge that the language problem was not a good reason for the delay. 

23.  Therefore, the applicant must satisfy the Court that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

24.  We now turn to consider the 5 grounds of appeal set out in the applicant’s affirmation in support of her out of time application to appeal against the Decision.  The applicant is essentially saying that the Board and the Judge had wrongly focused on the fact that she had delayed in raising her non-refoulement claim that caused doubt on her real purpose of coming to Hong Kong and her credibility as a genuine asylum seeker.  She also complained that the Board and the Judge had not placed enough weight to the fact that she received death threat from the local officers for the evasion of military service of her elder son and the Judge wrongly concurred to the Board’s findings.

25.  We have carefully reviewed the Board’s decision and noted that the Board had set out the applicant’s case i.e. the facts in relation to the evasion of military services of her 2 sons and how she was approached and pressurized by the local authorities in detail in [19] of its decision.  The Board found that the applicant was not a trueful witness as she claimed that she came to Hong Kong on 8 March 2005 for tourism with a friend but she overstayed for 10 months until she was arrested on 5 January 2006.  She came to Hong Kong again in February 2014 to seek for her second son and she did not lodge her non-refoulement claim until she was arrested on 9 January 2015.  On the basis of the said factual matrix, the Board arrived at the finding at [22] of its decision that the applicant did not come to Hong Kong to seek for protection but for family reunion.  We take the view that it was perfectly open for the Board to reach its conclusion and we see no grounds to disturb those findings.

26.  Further we note it was not disputed that save for some verbal warnings from the local officials, the applicant was not actually arrested or assaulted or tortured in Vietnam.  She mentioned in Answer 35 of her non - refoulement claim form that “I had a heated argument with the officials who came to locate my elder son.” She further admitted that she was not afraid of the officials.  As such, the Board found that it was only a bare threat that she would be arrested for her son’s evasion of military service and a sheer exaggeration in relation to her fear of arrest by the local authorities upon her return ([22] of the Board’s decision). 

27.  In our judgment, the Board’s decision was well founded and eminently reasonable and we found no error of law or procedural unfairness or irregularities that warranted the intervention of this Court. 

28.  Regarding the complaints against the Judge’s one-side favour and concurrence with the Board’s decision, they are bare general assertions and the applicant’s mere disagreement with decisions of the Board and the Judge.  Despite the applicant failed to provide any grounds for her intended challenge in her Form 86 and supporting affirmation and made no complaints of any procedural irregularity, unfairness or unreasonableness at the hearing, the Judge had duly considered the all papers and reached her conclusion that she found no flaw in the Board’s decision.  We do not find any prejudice or bias in the Judge’s analysis and findings and the applicant’s complaints against the Judge simply cannot stand.

29.  To conclude, there is no merit in all the grounds of appeal.  

30.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 25 July 2019 is dismissed accordingly.

31.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.