NGUYEN THI HAI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITON OFFICE

CACV 189/2021

[2021] HKCA 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2021

(ON APPEAL FROM HCAL NO 1432 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  On 14 April 2021, DHCJ K.W. Lung (“the Judge”) refused to grant an extension of time to the applicant to apply for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 9 November 2017 and dismissed her application for leave to apply for judicial review.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 9 June 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 26 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

3.  Pursuant to the Court’s directions of 13 July 2021, the applicant was required to lodge her written submissions on or before 16 August 2021 but she failed to do so.  The Court further directed that in the event the applicant failed to lodge her written submissions, she would be deemed to waive her right to have an oral hearing of this appeal and elect to have this appeal disposed of on paper.  As it is appropriate to do so, we now proceed to consider this appeal on paper only.

BACKGROUND

4.  The applicant is a Vietnamese national.  She came to Hong Kong illegally on 22 August 2016.  She surrendered to the Immigration Department on 23 August 2016 and lodged her non-refoulement claim on the basis that if refouled, she would be harmed or killed by her creditors because she was unable to pay off her debt.  The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2021] HKCFI 957).

5.  By a Notice of Decision dated 9 June 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

6.  The applicant appealed the Director’s decision to the Board and the appeal was disposed of on paper.  By its decision dated 9 November 2017, the Board refused the applicant’s claim.  For the reasons set out in [24] to [45] of the Board’s decision, the Board found that the Applicant’s dispute with her creditors was private in nature without any state element and she did not sustain any physical harm or injury save for some verbal threats in October 2015 when her creditors came to her shop to demand for payment of her debt. Further, despite the fact that the creditors had attended her family home from October 2015 to August 2016 to look for her, when her parents said they did not know the whereabouts of the applicant, the creditors just left without doing any harm to the family and had not come to her family home to look for her anymore. The Board found that there was no real risk of harm upon her return to Vietnam and in any event, internal relocation would be a reasonable and viable option [46] – [48].  For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

DECISION OF THE COURT BELOW

7.  On 20 July 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decisions.  By then she was late with her application.  Pursuant to Order 53 rule 4(1) of the Rules of High Court (Cap 4A), the applicant should apply for leave to apply for judicial review promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant delayed in making her application by 1 week.

8.  In her supporting affirmation, she did not provide any ground of judicial review save for saying that if she were to return to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditors because she was unable to pay off her debt.

9.  The Judge disposed of the application on paper.  By his decision dated 14 April 2021, the Judge refused to grant an extension of time to the applicant to apply for leave to apply for judicial review and dismissed the leave application.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 as follows:

“11. As mentioned in paragraph 1 above, this application is late.

12. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ, held:

‘39. … …a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.’

I shall consider the merit of the case.

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.’

15. Whether she can establish her case is a matter of fact to be determined by the Director and the Board. They had found against her. Her grounds in support of this application does not assist her.

16. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

APPEAL TO THIS COURT

10.  On 26 April 2021, the applicant filed her Notice of Appeal to this Court against the Judge’s decision and advanced the following grounds of appeal:

“the grounds of this appeal are that the gravity of my circumstances have [not] been weighed or realized by both Putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

LEGAL PRINCIPLES

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)   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 on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)   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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

DISCUSSION

12.  The applicant’s non-refoulement claim was rejected by the Board on the grounds that her claim merely involved private dispute on loan repayment and she did not suffer any physical harm or injury over the incident.  The Board also found that state protection was available, and internal relocation was viable.  As such, the Board concluded that there was no real risk of harm upon her return to Vietnam.

13.  The Judge adopted the correct approach in considering whether to grant an extension of time for the applicant to apply for leave to apply for judicial review.  The Judge duly considered the applicant’s case and analysed the merits of the intended judicial review.  The Judge reviewed the Board’s decision with vigorous examination and anxious scrutiny.

14.  We are satisfied that the Judge was right to refuse to grant an extension of time to the applicant to apply for leave to apply for judicial review, and to dismiss the leave application.

15.  The applicant has not in her Notice of Appeal raised any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  The applicant’s appeal has no merits.

ORDER

16.  For the above reasons, this appeal is dismissed.