NGUYEN THI HOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 488/2021

[2022] HKCA 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 488 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1246 OF 2018)

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J U D G M E N T

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

1.  On 25 March 2021, Deputy High Court Judge CP Pang refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 15 October 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merits in the intended appeal[2].

3.  On 28 October 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order made by DHCJ Bruno Chan dated 15 October 2021. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ CP Pang dated 25 March 2021.

4.  The applicant is a national of Vietnam. She is 49 years old. She arrived in Hong Kong illegally on 27 June 2013 and was arrested by the police on 10 July 2013 for using a forged Hong Kong Identity Card. She was sentenced to 15 months in prison and lodged her non-refoulement claim on 15 May 2014. Her basis for her claim was that she would be harmed or killed by her husband for being unwilling to participate in drug trafficking and other domestic violence claims.

5.  By a Notice of Decision dated 8 July 2016, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], and persecution risk[5].

6.  By a Notice of Further Decision dated 8 September 2017, the Director rejected the applicant’s claim under BOR 2 risk[6].

7.  The applicant appealed against the Director’s decisions and an oral hearing of the appeal was held on 28 November 2017. The Board found the evidence of the applicant unreliable and inconsistent. In particular, the Board found there was dishonest element in the applicant’s conduct such as admitting that the trip to Hong Kong was an unlawful entry and agreeing to use a forged Hong Kong Identity card to take up employment. In any event, the Board found that the applicant could have relocated elsewhere in Vietnam and even if the alleged misfortunes existed, she failed to establish any substantial risk of torture or harm suffered. Therefore, the applicant’s claim for non-refoulement failed and the appeal was dismissed on 29 December 2017.

The judge’s decision

8.  On 3 July 2018, the applicant applied for leave to apply for judicial review out of time against the decision of the Board. She stated that the Board ignored the issues related to her and repeated her claims of being harmed by her husband. As she did not request for an oral hearing, DHCJ CP Pang considered the application on paper.

9.  As the applicant was late for more than 3 months, the judge considered this was significant. No reason was put forward by the applicant for this delay. The judge found the delay inexcusable. He went on to consider the merits nevertheless. He held that there was no realistic prospect of success of the applicant’s case as the assessment of evidence, risk of harm, state protection and viability of internal relocation were duly considered by the Board. In any event, the judge held that there was nothing to show that the Board had committed any error in the application of law, made irrational findings, or that there was procedural unfairness in coming to its conclusions. The judge agreed with the Board that it is not unreasonable or unsafe for the applicant to relocate to other parts of Vietnam and there was no justification to afford her with non-refoulement status. Thus, the judge dismissed the applicant’s application on 25 March 2021.

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in her summons. In her supporting affirmation, the applicant deposed that she did not receive the relevant court document and she was unable to understand English. In her written submissions, the applicant advanced these grounds of appeal which may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing her credibility.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing 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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 25 March 2021. The applicant took out a summons in the court below on 31 May 2021. She was late for more than 7 weeks and her explanation was that she did not receive the relevant court documents on time. However, the court records showed that the documents were sent on the same day of the decision and none of them has been returned through undelivered post. The applicant’s delay is not justified.

13.  As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merits of the intended appeal, the court 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.

15.  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 decision of 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 it is a fresh application for judicial review.

16.  The applicant’s written submissions are simply bare assertions and do not contain any arguable challenge against the decision of the judge. The judge has duly considered the applicant’s complaints against the Board and given detailed explanation for rejecting the out of time leave application in the judgment on 25 March 2021.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 25 March 2021 and dismiss the summons filed on 28 October 2021.