RE NGUYEN THI HUONG AND ANOTHER

CAMP 307/2021

[2023] HKCA 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.307 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2200 OF 2018)

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J U D G M E N T

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

1.  This is the 1^st and 2^nd applicants’ renewed application for leave to appeal out of time against the decision dated 17 August 2020[1] of Deputy High Court Judge Bruno Chan (“the Judge”) refusing their application for leave to apply for judicial review.

2.  The 1^st applicant has also filed an affirmation and on 12 November 2021 further lodged a written submission in support of the application.

3.  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, and the 1^st applicant’s affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicants’ intended judicial review is against the decision dated 17 September 2018 of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decision dated 13 April 2018 of the Director of Immigration (“the Director”) which rejected their claim for non-refoulement protection.

5.  The 1^st applicant is a national of Vietnam aged 37 years old. She entered Hong Kong illegally and was arrested by the police on 6 June 2017. She then raised a non-refoulement claim. On 25 September 2017, she gave birth to the 2^nd applicant in Hong Kong. On 22 March 2018 she raised a non-refoulement claim on his behalf and sought a joint assessment. The residency status of the 2^nd applicant is unknown.

6.  The applicants’ claim is based on fear of being harmed or killed by the creditor of her husband due to her inability to repay the debt owed. The details of their claim were set out in the Director’s decision at [6] and the Board’s decision at [3] to [12].

7.  In gist, the 1^st applicant claimed she had a premarital pregnancy and subsequently married her husband, Thanh. They operated a grocery shop while Thanh also engaged in illegal bookmaking activities. In June 2015, the 1^st applicant gave birth to their son. In 2016, their relationship deteriorated. Thanh asked for a divorce before he left and never returned. In February 2017, some men came to the shop. They claimed that Thanh was indebted to them and had run away without making repayment. They pulled the 1^st applicant’s hair and arms before they left, saying they would give her three months to make repayment. Some three months later, the gang returned. As she could not repay the debt, they pulled her hair and slapped her, threatening to return later. At the time, the 1^st applicant was pregnant with the 2^nd applicant as a result of her relationship with another man. She did not report the two incidents to the police nor tell her family about the debt. Fearing for her personal safety, she left Vietnam illegally, went to Shenzhen, and from there sneaked into Hong Kong.

8.  In accordance with the 1^st applicant’s request for joint assessment (see the Director’s decision at [2]), the 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim. By a decision dated 13 April 2018, the Director rejected their claims having regard to the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.

9.  The applicants’ appeals to the Board were heard on 17 August 2018, during which the 1^st applicant gave evidence and answered questions from the Board on behalf of both herself and the 2^nd applicant. She informed the Board that she had filed a divorce in the court in Vietnam in 2016 but it had not been approved, and her older son is in Vietnam being taken care of by her mother.

10.  By its decision dated 17 September 2018, the Board dismissed the appeals. Primarily, for the reasons given at [27] to [38] of the decision, the Board did not consider the 1^st applicant’s evidence credible and rejected it, having regard to the significant inconsistencies between the evidence she gave at the hearing before the Board and the information she provided to the Director. Further, having considered the Country of Origin Information (COI), the Board did not accept that illegitimate children or their mother would face systematic discrimination or harassment in Vietnam. The Board was also of the view that the dispute in question was a private matter that does not involved public or government officials or state agents; there was no element of persecution or likelihood of risk to life. The Board further found that state protection is reasonably available and internal relocation is viable, which will negative or reduce any risk of harm the applicants may face. The Board accordingly concluded it has not shown been shown that the 1^st and 2^nd applicants are entitled to non-refoulement protection under any of the applicable grounds.

11.  By a Form 86 filed on 11 October 2018, the 1^st applicant applied on behalf of both herself and the 2^nd applicant for leave to judicially review the Board’s decision. Other than repeating the facts of the claim in her supporting affirmation, the 1^st applicant did not set out any ground for seeking relief.

12.  The Judge heard the application at an oral hearing held on 5 August 2020, during which the 1^st applicant made submissions on behalf of herself and the 2^nd applicant. By a Form CALL-1 dated 17 August 2020, the Judge dismissed the application on the basis that the intended judicial review had no prospect of success. He gave his reasons at [12] to [14] as follows:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicants’ 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

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 Applicants’ claim.”

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 14 September 2020[6].

14.  By a summons and an affirmation filed on 24 February 2021, the 1^st applicant applied on behalf of herself and the 2^nd applicant for an extension of time to appeal the Judge’s decision. The Judge listed the application for an oral hearing on 2 June 2021, but the applicants were absent. The Judge proceeded to deal with the application on paper, and by his decision handed down on 22 June 2021[7] refused the application.

15.  On 30 July 2021, the 1^st applicant filed the present summons to make a renewed application on behalf of herself and the 2^nd applicant to this Court for extension of time to appeal.

16.  In deciding whether to extent time for appealing against the Judge’s decision refusing them leave to apply for judicial review, the Court has to consider: (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.

17.  Even if the Court does not accept that the applicant’s explanation for delay is reasonable, the Court would examine the merit of the intended appeal. Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted. When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

18.  In assessing the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. 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.

20.  The applicants were more than five months late, which is a serious delay in the context of the statutory limit of 14-days. Both in her affirmation in support of the application made to the Judge and the affirmation filed in this application, the 1^st applicant explained that she does not read or understand English, she was not aware of the 14-day period required for the filing of her appeal, and that she was then being detained at Lo Wu Correctional Institution and was unable to seek legal advice for their intended appeal. As pointed out by the Judge in the decision dated 22 June 2021, the Form CALL-1 was sent to the applicants’ last reported address and was not returned through undelivered post. The 1^st applicant has also not elaborated on when she was first detained at Lo Wu Correctional Institution and when she was subsequently released. There was also no explanation for her absence at the hearing before the Judge. In the circumstances, while we are prepared to accept that the 1^st applicant may not be conversant with the English language or the court procedures, we are not satisfied that the applicants have satisfactorily explained the serious delay. However, what is more important is the merits of the intended appeal, to which we now turn.

21.  The applicants have not in their summons or the 1^st applicant’s affirmation provided any grounds in support of the intended appeal. The 1^st applicant only stated in her supporting affirmation that she has yet to agree with the creditor on a repayment plan on the loan and she feared that her life would be in danger if she is to be repatriated.

22.  In the written submission, the 1^st applicant summarised the factual basis and the procedural history of their claims. Under the “Submission” section, there was extensive quoting from cases on high standards of fairness and Wednesbury unreasonableness. It was submitted that the Board acted in a procedurally unfair manner in dealing with the 1^st applicant’s application without properly assessing her credibility. It was also said that the creditors and gangsters in Vietnam were cruel, violent, had no regard for the law and would readily kill people out of anger, and the Immigration Department did not consider her human rights by ordering her deportation.

23.  For the reasons set out below, we are of the view that what has been put forward on behalf of the applicants does not constitute viable grounds of appeal against the Judge’s decision:

(1)  The written submission has not explained how the legal principles and passages quoted in it relate to the applicants’ case. This Court had repeatedly pointed out that general assertions or propositions of law without indicating how they relate to the facts of the case are of no assistance to the applicants: see Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; and Re Salim Ahmen [2020] HKCA 244.

(2)  There is no elaboration on in what way the Board was said to have acted unfairly in assessing the 1^st applicant’s case or her credibility. Contrary to the assertion, we note the Board had given proper consideration to the 1^st applicant’s evidence and the relevant COI, and had adequately explained its findings. Given the material inconsistences identified by the Board, it was entitled to reject the 1^st applicant’s evidence as being unreliable and incredible. In any event, assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers. The court may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair.

(3)  In light of the Board’s rejection of the 1^st applicant’s evidence, which was the only factual basis of the applicants’ claims, the assertion that their lives will be in danger if refouled cannot stand.

24.  In the circumstances, the 1^st applicant’s intended appeal does not have any prospect of success.

25.  In the case of the 2^nd applicant, we are mindful of the fact that he is a minor and has not been legally represented in the proceedings below and in this Court, as required by Order 80 rule 2 of the Rules of the High Court. We have examined the Board’s decision with particular regard to his case in light of the need to separately consider whether his claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to lack of legal representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].

26.  In the present case, the 2^nd applicant’s claim was based on the 1^st applicant’s claim of risk of harm from Thanh’s creditor. On the 1^st applicant’s own case, the creditor did not know she was pregnant or of the 2^nd applicant’s existence, and had never threatened to harm the 2^nd applicant or the son she has with Thanh. Although the 2^nd applicant’s claim was assessed together with the 1^st applicant, the Board had considered and assessed whether there was any risk of harm that he might face as an illegitimate child if he were sent to live in Vietnam with the 1^st applicant. The Board, as it was entitled to find on the basis of the COI, concluded that there were no serious risks of harm to the 2^nd applicant.

27.  We also note that, both in the applications before the Judge and in the present application, the 1^st applicant has not shown any real risks of harm that the 2^nd applicant may separately face in Vietnam.

28.  We are satisfied that there are no non-refoulement grounds relating specifically to the 2^nd applicant that had not been advanced to, or considered by, the Board owing to lack of representation. We are of the view that the 2^nd applicant’s intended judicial review and his intended appeal against the Judge’s decision do not enjoy any reasonable prospect of success.

29.  Accordingly, we will treat the non-compliance with Order 80 rule 2 and the 2^nd applicant’s lack of legal representation as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.

30.  As the applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 30 July 2021.