LE THI LOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 256/2023, [2024] HKCA 423

On Appeal From [2023] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 256 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 74 OF 2023)

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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 K. W. Lung (“Judge”)  dated 23 March 2023[1] refusing to grant leave for the applicant 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 16 December 2022.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 13 April 2022 rejecting her non-refoulement claim.

2.  On 10 July 2023, the Judge refused to extend time for the applicant to appeal against the Judge’s decision of 23 March 2023.

Background

3.  The applicant is a national of Vietnam born in 1963.  She claimed to have entered Hong Kong illegally on 20 October 2021 and was subsequently arrested by the police on 21 November 2021.  She submitted written signification of her intention to lodge a claim for non-refoulement protection on 14 December 2021 on the basis that she would be harmed or killed by her creditor as a result of her inability to repay a loan, if she was refouled to Vietnam.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 13 April 2022, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 24 November 2022, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 16 December 2022, the Board dismissed the appeal and affirmed the decision of the Director.  The Board found the applicant’s claims to be incredible, such as claiming that her husband was imprisoned in around 2004 for their failure to repay the loan and that she continued to live at her original residence up until 2019.  The Board considered that it did not make sense that she was not imprisoned like him or found by the creditor at an earlier time when they defaulted in repayment, that she did not run away at that earlier time when her husband was imprisoned as a result of the loan, and that she chose to borrow more money and rack up the loan.   In addition, the Board did not think it credible that the creditor would lend more money to the applicant when she already could not make repayments, or that the applicant who claimed to have had four teeth knocked out by the creditor would flee alone leaving her mother and children behind at the original residence.  The Board did not accept the applicant’s claims about the loan, being chased for repayment of the loan and being threatened for this alleged loan.  For these reasons, the Board did not find any alleged risk of harm if the applicant was refouled to Vietnam.  In any event, the Board found that internal relocation was a viable option for the applicant to avoid the alleged risks of harm upon repatriation.

The Judge’s decisions in the court below

6.  On 18 January 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the rejection of the “subsequent claim” dated 16 December 2022, which appeared to refer to the Board’s decision of 16 December 2022, without specifying any grounds in that form.  In the supporting affirmation, the applicant simply annexed a copy of the Board’s decision dated 16 December 2022.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 23 March 2023, the Judge issued his decision to refuse to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact finding power vested in the Director and the Board.  The applicant had not demonstrated any error of law or procedural unfairness in the decisions of the Board or the Director.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that she has any realistic prospect of success in the proposed judicial review.

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap. 4A), but filed a summons on 5 June 2023 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In her affirmation, the applicant stated that she understood there was a good ground of appeal that had not been necessarily considered, but did not give  any particulars.  On 10 July 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed on 19 July 2023, the applicant made an application for leave to appeal from the Judge’s order dated 10 July 2023.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 23 March 2023 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, she stated that she is “unrepresented and did not have access to any legal advice”.  She also stated “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review” without any further elaboration.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 19 July 2023.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for almost two months when she filed her initial summons for extension of time on 5 June 2023.  In her supporting affirmation, the applicant stated that she understood there was a good ground of appeal that had not necessarily been considered but she did not elaborate.  As she did not offer any valid explanation for the delay, the Court will refuse to extend time unless there are real prospects of success in the intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed her evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it found the applicant’s claims to be incredible and did not accept any of her claims about the loan or the past incidents of conflict to be true.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  As to the complaint of lack of legal representation, it has been repeatedly emphasised by this Court that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that the applicant was legally represented in the preparation and completion of the non-refoulement claim form, which formed the important basis of her claim and any further actions were based on this.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review. 

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 19 July 2023 is accordingly dismissed.