RE NGUYEN THI THUY

CAMP 305/2023, [2024] HKCA 604

On Appeal from [2023] HKCFI 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 305 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 87 OF 2019)

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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 11 September 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 31 August 2023 ([2023] HKCFI 2126)  (“the EOT Decision”)  refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 7 March 2023 ([2023] HKCFI 380)  (“the Leave Decision”)  refusing her application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 28 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 11 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 8 May 2016 and surrendered herself to the Immigration Department on 10 May 2016.  On the date of surrender, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Vu Thi Lan, and the creditor’s husband Tien.  Details of the applicant’s non-refoulement claim were summarised by the Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision. The Board’s reasons for its decision were summarised by the Judge at [8] - [10] of the Leave Decision:

“8.  The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for her appeal, during which she testified [4].

9.  The Board found that there was no evidence of state involvement [7]-[9]; that the alleged injuries did not attain a minimum level of severity [10]-[13]; that the internal relocation was proven to be a viable option as shown in the country of origin information [14]-[19]. For these reasons, the Board rejected the applicant’s claim on the ground of Torture risk. In light of these findings, the applicant’s claim on the remaining grounds also failed. Independently assessed, the applicant’s claim was found to be unreliable [31]-[35].

10.  Therefore, the Board rejected the applicant’s claim and dismissed her appeal.”

7.  On 9 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In support of her application, she claimed that her enemies would inflict more serious harm and threat on her owing to her default in payment.

8.  As the applicant did not request for an oral hearing, the Judge considered her application on paper.

THE JUDGE’S DECISION

9.  On 7 March 2023, the Judge refused her application for leave to apply for judicial review.  His reasons were stated at [13] - [19] of the Leave 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, §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.

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 grounds in paragraph 12 above are not valid 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.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 9 June 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was over two months late with her intended appeal.

12.  On 31 August 2023, the Judge refused the applicant’s application, holding that the applicant did not raise any valid ground to challenge the Board’s Decision and there was no realistic prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation (attaching a “Statement”)  taken out on 11 September 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons and supporting affirmation, the applicant merely asserted that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her home country.

14.  In her “Statement”, she alleged that it was unsatisfactory that the Judge ruled that she had no chance of success in reviewing the decisions of the Board and the Director.  She further asserted that if refouled, her life would be in danger given that the creditors and gangsters were violent and, as she was not an active person, internal relocation would not be feasible.  She also complained that the Immigration Department failed to consider her human rights under various legislations but failed to give any specific particulars in support of her contentions.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the 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.

17.  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].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases 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)]).

19.  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.

20.  In our view, the applicant’s delay of over two months is substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain her delay.

21.  More importantly, her intended appeal has no merit. There is no substance in her complaint that she was not afforded the opportunity to present her case and country situation.  The applicant had ample opportunities to make her case in her written submissions before the Judge.

22.  In any event, the applicant’s allegations are all vague, bare and general in nature.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she fails to specifically identify any error in the Leave Decision.  Her assertions are not proper grounds of appeal.

23.  Accordingly, 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 Leave Decision.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 11 September 2023 is dismissed.