RE NGUYEN THI THUY HA

CAMP 336/2022, [2023] HKCA 673

On appeal from [2022] HKCFI 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 336 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 151 OF 2019)

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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 applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”)  dated 7 January 2022[1] dismissing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written statement to support her 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 papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  which rejected her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 40.  She entered Hong Kong illegally and was arrested by the police on 7 December 2015. She was later sentenced to 15 months’ imprisonment for illegally remaining in Hong Kong and possession of a forged identity card.  On 28 February 2017, she lodged a non-refoulement claim based on fear of being harmed or killed by her creditor due to her inability to repay her debt.  The details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.   

6.  By his decision dated 24 March 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board held an oral hearing on 26 November 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 28 December 2018, the Board dismissed the appeal.  The Board essentially rejected her evidence as being inconsistent and incredible.  The Board further held that the dispute between the applicant and the creditor was private in nature and had nothing to do with the Vietnamese government or authorities.  The Board was satisfied that internal relocation alternatives were available, which would further lower or negate the level of risk that the applicant may face.  In light of its findings, the Board concluded that the applicant’s claim failed on all applicable grounds.

8.  On 16 January 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She contended that the Board erred in: (i)  accepting irrelevant evidence relating to her claim; (ii)  adopting a subjective assessment of her claim; (iii)  drawing irrational inferences; and (iv)  underestimating the level of risk of harm to the applicant.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 7 January 2022, he dismissed the application.  His reasons for rejecting the grounds put forward by the applicant were set out in [17] to [27] (in Chinese)  as follows:

“17. 申請人投訴的實質是她不同意上訴委員會不信納她的證據，不相信她是因害怕追債被殺而必須逃離越南，並裁定她的免遣返申請完全欠缺事實基礎，而拒絕她的申請。實質上，她是籍司法覆核的名義質疑上訴委員會的事實裁定提出上訴。

18. 法庭在審理司法覆核的責任不是重新評估申請人的免遣返申請。在審理免遣返申請時，主要的決定者是入境事務處處長及上訴委員會。只是他們才有權利評估證據，證人的可信性及作與免遣返相關的事實裁定，例如在統一審核機制下所有適用的理由與所指的風險、原居國家所能提供的保護及在原居國家內搬遷的可行性等。法庭會認真及仔細審查上訴委員會的決定。法庭僅會針對上訴委員會在審理免遣返申請時所犯的法律錯誤、程序不公平或不合理的況，通過司法覆核方式進行干預。

19. 申請人的第一項申請理由是針對裁定書第9至第14段。她投訴上訴委員會錯誤地只著重考慮她的借貸利息的出入陳述、償還貸款的可能性等無重要的證據，以求達到推斷她的證據不合理的目的，而忽視了她為何要向債主借錢及債主威嚇若她報警的話便會殺死她的兒子等重要因素。她指控上訴委員會避重就輕，對她不公平。

20. 申請人實質是藉不公平的名義挑戰上訴委員會的事實裁定。在作出事實裁定及證人可信性的評估時，法庭最常用的測試是證人所指稱事實的內在可信性，這亦是最可靠的試金石。申請人免遣返申請的基礎是她所欠的債、沒有償還債項的能力、債主的恐嚇、她受傷害的可能性或風險。她所指稱的貸款數額與利息正是她所指稱的欠債的要素，是債主對她施加恐嚇及她可能受到傷害的因由。若她真的曾向債主借款，她沒有可能不能清楚交代。上訴委員會考慮這方面的證據是完全恰當。在裁定書第9段至第12段，上訴委員會已清楚交代不信納申請人的理由。該裁定是上訴委員會獨有權作的事實裁定。申請人的理據不足以構成合理的申請司法覆核理由，申請人基於這理據的申請也沒有成功機會。

21. 申請人的第二項申請理由是針對裁定書第12段。她投訴上訴委員會錯誤地作出主觀判斷。她的指控是基於在該段上訴委員會稱她在關鍵點作出不同說法，但卻沒有說明什麼關鍵點的差異。她投訴這裁定對她不公平。

22. 在裁定書第10(i)  及 (ii)段，上訴委員會已經十分清晰地指出，她在免遣返申請表格與上訴聆訊時作出關於貸款額和利息的差異及她所作出不同及模稜兩可而混亂的解釋。很明顯，這些分歧便是上訴委員會在裁定書第12段所指的關鍵點與差異。進一步的理由可見於上文第20段。在裁定書第10(iii)  、(iv)  及(v)段，上訴委員會指出申請人其他不盡不實的證供。在裁定書第11段和第12段，上訴委員會經分析她的證供後，裁定她的證詞不合常理，不接納她的證據。這結論也是上訴委員會獨有權作的事實裁定。申請人的理據不足以構成合理的申請司法覆核理由，基於這理據的申請也沒有成功機會。

23. 申請人的第三項申請理由是針對裁定書第13段及第14段。她說既然債主用武力拳打腳踢申請人，她不明白為什麼上訴委員會會推測債主及他的手下不會殺害她的兒子。很明顯，這是一度程度的問題。由於債主及其手下只對申請人使用低程度的武力，且從沒有向她的兒子施襲，上訴委員會可以合理地推斷債主殺害她的兒子風險低。這結論也是上訴委員會獨有權作的事實裁定。申請人的理據不足以構成合理的申請司法覆核理由，基於這理據的申請也沒有成功機會。

24. 申請人的第四項申請理由是上訴委員會錯誤地低估她會被殺害的風險。與上一段相同的理由，上訴委員會可以合理地作出這推斷。這結論也是上訴委員會獨有權作的事實裁定。申請人的理據不足以構成合理的申請司法覆核理由，基於這理據的申請也沒有成功機會。

25. 上訴委員會正確地列出統一審核機制下所有適用的理由包括：酷刑風險、《人權法案》第三款的風險、《人權法案》第二款的風險及受迫害風險。上訴委員會亦正確地引述適用的法律原則，舉證標準，並援引了相關案例支持它的決定。它知悉到在裁決上訴時須重新考慮所有相關事情的始末，而並非只考慮入境事務處處長的決定是否正確。上訴委員會正確地確定申請人的免遣返申請是建基於她指稱欠下債主的債項、債主討債所使用的武力與威嚇、她所受到的傷害、她所遭受迫害的風險、越南政府所能提供的保護、她所面對受傷害的真實機會等。

26. 上訴委員會裁定申請人未能成功證明欠債及她是因害怕追債被殺而必須逃離越南的指稱。因此，她的免遣返申請完全欠缺事實基礎；她不能成功舉證她會面對酷刑風險、《人權法案》第三款的風險、《人權法案》第二款的風險及受迫害風險。此外，基於可信的原居國家資料，上訴委員會認為沒有證據顯示越南政府不能及不會對申請人提供洽當的保護；及認為以她的能力及經驗可以遷到河內生活，以避免她所聲稱可能會遭受的風險。這些全屬事實裁定，是上訴委員會獨有的權利。

27.  經認真及仔細審查上訴委員會的裁決書、相關的文件及證據後，法庭確定上訴委員會的決定完全沒有絲毫錯誤，它的決定不存在可被視為程序不公平或「溫斯伯里」不合理的況（即按照Wednesbury一案所訂標準，原審法官祇須審查案中證據，從而決定是否根據這些證據，一個合理的法官，對自己作出恰當的法律指引後，不可能會作出的決定）。申請人在本案沒有合理可爭辯的論據，她的司法覆核申請也沒有合理成功機會。因此， 法庭拒絕申請人的司法覆核許可申請。”

10.  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 decision within 14 days after it was made. 

11.  By a summons filed on 3 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 5 August 2022[6] refused the application. 

12.  On 5 September 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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. 

14.  The applicant was over three months late when she made the application for extension of time to the Judge.  She explained that (1)  she was a close contact of some COVID-19 patients during the pandemic; and (2)  the Judge’s order was written in English which she did not understand, and she needed to wait till her friend had time to help her to make the application.  Like the Judge, we do not consider the applicant has satisfactorily explained the delay.  In relation to the first reason, the applicant has failed to file supporting evidence despite the directions given by the Judge on 24 May 2022.  As for the second reason, it does not sit well with the fact that the Form CALL-1 and the Order of the Judge were in the Chinese language; it is not the applicant’s case that she does not understand Chinese.  Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.  

15.  In assessing the merits 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]. Relevantly, 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.  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.

16.  The summons did not contain any ground for the application.  The affirmation complained that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and her situation in her country.  She also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time.   

17.  In her written statement, the applicant stated that relocation is not feasible as she would face many difficulties and obstacles in that she does not enjoy good health and is not an active person. It is said that she will be disadvantaged in the labour market and cannot make a living to support herself.  The applicant also complained that the Director did not consider her human rights.  She claimed that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if she is repatriated, her life will be in danger.  The applicant further complained that the Director and the Board did not accept her evidence which was all true, and did not investigate or take steps to verify her claim, and lacked objectivity in assessing her claim.   

18.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation and written statement are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  In particular, her contention regarding her delay due to COVID-19 and language barrier was sufficiently dealt with by the Judge at [7] and [8] of his decision dated 5 August 2022.  It is also the duty of the applicant to set out in her Form 86 her grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and her Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(2)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.  The assertion of risks to harm in the written statement has no proper factual foundation. 

(3)  As to the various complaints made against the Director and the Board, they have been fully and carefully dealt with by the Judge in [16] to [24] of the Form CALL-1.  The applicant has not pointed to any error in the Judge’s reasoning and decision.

(4)  In any event, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.   

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.   

20.  As the applicant’s intended appeal against the Judge’s refusal 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 applicant’s summons filed on 5 September 2022.