RE NGUYEN THI BINH

CAMP 539/2021

[2022] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 539 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 948 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“Judge”) on 28 September 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 4 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 April 2017 rejecting the applicant’s non-refoulement claim.

2.  Although the applicant’s summons and written submissions in this court are in Chinese, the Director’s, the Board’s and Judge’s decisions as well as the applicant’s application for leave to apply for judicial review and her supporting affirmation are all in English. This court’s decision is therefore being issued in English, but the applicant will be notified, when this decision is handed down, that she may request interpretation services in the High Court if she has difficulty understanding this decision.

Background

3.  The applicant is a Vietnamese national. She claimed that she entered Hong Kong illegally on 30 April 2015. She was arrested by the police in Hong Kong on 31 May 2015 for using a forged Hong Kong identity card and for remaining without permission, and subsequently sentenced to 15 months’ imprisonment. She lodged her non-refoulement claim on 14 August 2015.

4.  The applicant’s claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by a loan shark. The factual background was summarized at paragraphs 27 to 41 of the Board’s decision.

5.  By notice of decision dated 28 April 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 5 March 2018, during which she answered questions from the Board and clarified certain matters from her previous evidence. The Board considered that the inconsistencies in the applicant’s evidence and her unconvincing explanations and her use of a forged Hong Kong identity card cast doubt on her overall credibility, but was prepared to give her the benefit of the doubt concerning her past experiences in Vietnam, and accept that she had received threats and assault from the loan shark. Nevertheless the Board found that she had not suffered any serious injury or harm or severe pain or suffering. Moreover, she had had no contact with the loan shark since February 2015. In the end the Board found that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable. Therefore, the Board dismissed the applicant’s appeal on 4 April 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

7.  On 28 May 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the applicant briefly related the factual basis for her claim. However, she did not raise any specific grounds for judicial review.

8.  Following consideration of the documents only, on 28 September 2020 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [13] – [21] of the Form CALL-1 as follows:

“ 13. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

14. When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on discussing the latter’s decision.

15. In the present case, the Board noted the inconsistencies and unsatisfactory explanation in her evidence. Nevertheless, it accepted the primary facts asserted by the applicant in respect of the loan and the threats of her creditor. It had taken a view on facts most favourable to her. It only disagreed with her on the evaluation of risk of harm flowing from the events and assessment of viability of internal relocation.

16. As mentioned above assessment of risk of harm and internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

17. The complaint raised by the applicant in her affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what she told the Director and the Board. Her claim that she would be put in jail for the offence of “fraudulence” was not raised before the Board. In any event, it is not supported by evidence and unarguable. There is no reasonably arguable basis to challenge the Board’s findings.

18. The Board adopted a fair manner in assessing the evidence of the applicant and took a view on facts most favourable to her. The Board did not challenge her credibility. On the inconsistencies and unconvincing explanation in her evidence, the Board could have been entitled to find adversely on her credibility.

19. The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could also have damaged her credibility and was inconsistent with someone in genuine fear for her life and safety. At the hearing before the Board, she even admitted that an agent in the Mainland arranged the forged identity card and her employment in Hong Kong at a Chinese restaurant [42(c)].

20. Even on her own account, the alleged past ill-treatment was of low intensity. It came nowhere near the level of severity required by law to constitute torture or CIDTP.

21. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.”

9.  After expiry of the 14-day period for appeal, on 19 October 2020, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In the accompanying affirmation, she stated that she did not have financial means to obtain legal advice regarding the appeal procedure, and after the 14-day appeal deadline had passed, she thought she had lost the right of appeal. She stated that she understood that there was a good ground of appeal that had not necessarily been considered by the Judge, but did not specify what it was or indeed set out any grounds of appeal.

10.  Upon consideration of the documents only and without a hearing, on 17 November 2021, Deputy High Court Judge P Li dismissed the summons, refusing to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal.[6]

The renewed application before this Court

11.  On 29 November 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In her supporting affirmation, the applicant briefly repeated the factual basis for her claim. However, she did not raise any specific grounds of appeal.

12.  The applicant lodged her submissions on 8 December 2021, in which she again referred to the factual background of her claim, without specifying any ground of appeal or any alleged error in the Judge’s decision.

Discussion

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time is granted.

14.  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 in 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

15.  The applicant’s intended appeal was late by 7 days. The delay was not lengthy, and the applicant’s explanation for the delay was understandable, given that she was not legally represented. We have accordingly proceeded to decide the present application on the basis of the merits of the intended appeal.

16.  In the present case, the Board rejected the applicant’s non-refoulement claim mainly due to its finding that she had not suffered any serious injury or harm or any severe pain or suffering. As such, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable. These findings are within the province of the Board, and the court will not interfere with the Board’s assessment unless its decision may be impugned on public law grounds. The applicant has not been able to raise any such ground in this case. Indeed, having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

17.  Nor has the applicant raised any ground of appeal or proper argument for her intended appeal against the Judge’s decision. As the task of this court on an appeal is to examine the Judge’s decision in light of the grounds of appeal advanced, and as there appear to be no such grounds that point to any error committed by the Judge, there is no viable appeal.

18.  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 applicant’s summons of 29 November 2021 is dismissed accordingly.

The Applicant, unrepresented, acting in person