NGUYEN THI HONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 163/2024, [2025] HKCA 164

On An Intended Appeal From [2024] HKCFI 1456 &

[2024] HKCFI 2043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 163 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1582 OF 2019)

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J U D G M E N T

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

1.  On 26 August 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 15 August 2024 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 4 June 2024 (“the Order”) refusing to grant 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 5 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 February 2017 rejecting the Applicant’s non-refoulement claim.

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

BACKGROUND

4.  The Applicant is a national of Vietnam. Her last entry into Hong Kong, illegally, was on 6 February 2014. On 12 June 2014, she surrendered herself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the local police for her involvement in the villagers’ protests against the Vietnamese government’s confiscation of the villagers’ lands in her home village. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2024] HKCFI 1456).

5.  By a Notice of Decision dated 8 February 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 5 June 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 have been summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from the Vietnamese police or authorities over her protest against the government’s reclamation of local police that caused her to leave her home country to come to Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until about 4 months later when she surrendered to the Immigration Department, that over 4 years has elapsed since she left the country that there is no evidence or indication that the local police would still have any adverse interest in her over such a minor matter that she would face any risk of being arrested or persecuted by the authorities upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.”

7.  On 11 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In her affirmation filed in support of her application, the applicant claimed that she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor due to her insolvency, without explaining the relevance of such asserted risk to her original claim.

THE JUDGE’S DECISION

8.  On 4 June 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[10] On 11 June 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she put in some totally different claim of fear of being harmed by her creditor which is wholly irrelevant to her original claim and without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such 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 reasonably arguable basis for her intended challenge.

[11] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh…

[12] In the Applicant’s case, the Board rejected her claim essentially on its adverse findings against her case for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 44 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the findings of the Board.

[13] Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim even 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…

[14] 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.”

9.  On 24 June 2024, the Applicant applied by summons for an extension of time to appeal against the Order. By then, she was 6 days late to lodge her appeal. On 15 August 2024, the Judge refused the application, holding that the Applicant had failed to put forth any proper or valid proposed grounds of appeal, and there was no prospect of success in her intended appeal ([2024] HKCFI 2043).

THIS APPLICATION

10.  By a summons taken out on 26 August 2024 in the Court of Appeal, the Applicant applied for an extension of time to appeal against the Judge’s order of 15 August 2024.

11.  In her affirmation of the same date, the Applicant stated that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country. She also asserted that the merits of this ground of appeal constituted sufficient reason or justification for the court to exercise its discretion to allow her appeal out of time.

12.  In a statement dated 26 August 2024 lodged with the summons, the Applicant repeated her claim of threats from the local police in Vietnam. She also asserted that relocation is completely unfeasible for various reasons, and that the Immigration Department had failed to consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

13.  The Applicant has failed to lodge written submissions in support of her application, contrary to the directions given by the Registrar of Civil Appeals on 26 August 2024.

DISCUSSION

14.  Following the approach 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 extension of time to appeal against the Order.

15.  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.

16.  We agree with the Judge that the Applicant’s delay in the present case is not substantial. We shall therefore concentrate on the merits of the Applicant’s intended appeal.

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 a non-refoulement case, 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 was 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

20.  The Applicant’s complaint that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case or the situation in her country has no merits. The Applicant did not request for an oral hearing in the Form 86. In view of the apparent lack of merits of the application, the Judge was entitled, in the exercise of his discretion under Order 53, Rule 3(3) of the Rules of the High Court, to deal with the leave application on paper. In any event, she attended a hearing before the Judge on 1 August 2024 in respect of her application for extension of time to appeal, at which she made oral submissions to clarify her case with the Judge. As for the allegations made in her statement dated 26 August 2024, they are all general assertions without particulars, and cannot constitute valid grounds of appeal.

21.  The Applicant has failed to identify or show any error in the Judge’s decision of 4 June 2024, and has failed to raise any viable ground of appeal against the Order.

22.  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

23.  The Applicant’s summons taken out on 26 August 2024 is dismissed.