RE NGUYEN THI NGUYEN

CACV 176/2022

[2022] HKCA 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2022

(ON APPEAL FROM HCAL NO 418 OF 2019)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 28 April 2022[1] refusing to extend time for and grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 29 December 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 14 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Vietnamese national.  She was arrested by the police on 7 March 2013 for entering and remaining in Hong Kong without permission and for possession of a forged identity card.  The applicant was convicted and sentenced to imprisonment.  She was released from imprisonment on 4 January 2014 and referred to the Immigration Department.  She raised her non-refoulement claim on 19 January 2014.

3.  The applicant’s claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by loan sharks, due to her inability to repay her debt.  The factual background was set out at [8] to [25] of the Board’s decision.

4.  By notice of decision dated 14 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  Those applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 14 November 2017, during which the applicant gave oral testimony and answered questions from the Board, with the assistance of a Vietnamese language interpreter.  The Board found that the applicant’s evidence was not credible, due to inconsistencies in her evidence on key facts, including as to the years in which she borrowed money, the identity of the loan sharks who assaulted her, and which of her children were present during the assault.  During the hearing she was also unable to recall which ear had sustained an injury in the assault in question.

6.  The Board raised these inconsistencies with the applicant during the Board hearing, for which the applicant explained that she may have mixed up some things, that she was very nervous and emotional, and that she recently had a miscarriage when she was eight months pregnant.  The Board accepted that the applicant was undoubtedly nervous and distressed, but her explanation did not allay the Board’s concerns.  As a result of the applicant’s highly inconsistent evidence on key aspects of her claim, the Board concluded that the applicant had fabricated her factual claims.  In addition, the fact that the applicant had previously remained in Hong Kong using a false identity card weighed against her credibility.

7.  Due to its adverse finding on the applicant’s credibility, the Board did not accept that the applicant borrowed money from loan sharks, or that she subsequently defaulted on the repayment of the loans, or that she was at any time threatened, harmed or pursued by loan sharks.  Accordingly, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that even if the applicant’s claims were true, any risk was localized and that internal relocation was viable. Therefore, on 29 December 2017 the Board dismissed the applicant’s appeal in relation to all the applicable grounds.

Decision of the court below

8.  Much later than the 3 months prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), on 14 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, she raised a number of grounds for judicial review, which the Judge summarized at [8] of the Form CALL-1 as follows:

“ 8. On 14 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Adjudicator wrongly underestimated the risk of the Applicant being harmed or killed by her creditors if refouled to her home country without having ever lived in Vietnam to experience the real situation there;

(2) That the Board failed to take account of corruptions in the Vietnamese police in assessing that the Applicant would receive protection from the police from being harmed or killed by her creditors; and

(3) That the Board unfairly relied on the fact that the Applicant had been charged for possessing a forged identity card as against her in assessing her credibility.”

9.  The applicant also raised a further ground in her affirmation, namely that in the event of refoulement, she would not be treated fairly by the courts in Vietnam, because the courts or judges in Vietnam are often corrupt and receive bribes, such that their judgments are not fair.  In her affirmation the applicant also explained that when the Board’s decision was given, she was still very weak from the late miscarriage, and did not know what to do with the decision which was in English.  She subsequently became pregnant again and did not have time to deal with the Board’s decision.

10.  Following consideration of the documents only, on 28 April 2022 the Judge refused to extend time for and grant leave to apply for judicial review.  The core reasons for the refusal were set out at [12] – [20] of the Form CALL-1 as follows:

“ 12. The Applicant did not provide any medical evidence to corroborate her claim, but even accepting that she indeed at that time had had the misfortune of a miscarriage, her other reasons of not being able to read English and her subsequent pregnancy cannot in my view justify such serious delay of more than 10 months. In the circumstances I am not satisfied that the Applicant has provided any good reason for her delay.

…

14. The Board rejected the Applicant’s case essentially on its adverse finding against her credibility that she had fabricated her claims of having borrowed money from her creditors for her coal business and of her alleged fear of harm from them over her outstanding loans that it was not satisfied that she will be sought or threatened or harmed by anyone upon her return to Vietnam for the thorough and detailed analysis and reasoning set out in 45 – 58 of its decision with the benefit of hearing her in her oral evidence and answers raised of her claim, hence the Board did not find it necessary to proceed to consider the availability of state or police protection to the Applicant or of any risk that she may face upon her return to Vietnam which the Board as noted above found none to exist, or for that matter of any implication of any police corruptions which might have existed in Vietnam, and as such her complaints under Grounds (1) and (2) are not in my view relevant or reasonably arguable for her intended challenge.

15. As for her complaint under Ground (3) that the Board relied on her being charged for using a forged identity card in assessing her credibility, the Board was in fact entitled to do so under Section 37ZD of the Immigration Ordinance …

16. As noted above, the Applicant sneaked into Hong Kong sometime in December 2012 but did not raise any non-refoulement claim even after she was arrested by police on 7 March 2013 for illegally remaining in Hong Kong and for possession of a forged identity card, for which she was subsequently convicted and sentenced to prison for 15 months, and it was only after her discharge from prison on 4 January 2014 and was referred to the Immigration Department for deportation when she eventually on 19 January 2014 raised her non-refoulement claim, which was more than one year after she arrived in Hong Kong. Henceforth not only was the Board entitled to rely on the above stated subsection (2)(a) to take account of her possession of the forged identity card as damaging her credibility, but could have also taken account of her failure to raise her claim before her arrest under subsection (1)(e) as also damaging her credibility.

17. In any event, as noted above, it was for all those reasons set out in paragraphs 45 – 58 of its decision that the Board found the credibility of the Applicant’s claim doubtful and suspicious, and which had further been undermined and damaged by her such conduct that the Board rejected her claim and dismissed her appeal, and of which I do not find any error of law or irrationality or procedural unfairness upon close scrutiny of its decision. In the circumstances I do not find this complaint of the Applicant reasonably arguable either.

18. 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.

19. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. 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 Applicant’s claim.”

Appeal to this Court

11.  On 4 May 2022, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, the applicant merely stated that she wished to challenge the decision under appeal, but did not raise any grounds of appeal.

12.  The Registrar of Civil Appeals directed on 23 May 2022 that the applicant must lodge her skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.

13.  As the applicant failed to lodge any skeleton argument as directed, the original hearing date of 11 July 2022 was vacated and this appeal is accordingly disposed of on the papers without a hearing.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  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 advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

15.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no grounds advanced at all, the appeal should be dismissed for this reason alone.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding as to the applicant’s credibility.  The Board rejected the applicant’s factual allegations and found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable even if the applicant’s factual claims were accepted.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are vitiated on public law grounds.

17.  The applicant has not raised any errors or concerns as regards the Board’s assessment of credibility, nor has she raised any grounds for challenging the finding on the viability of internal relocation.  There seem to be no valid public law grounds for interfering with the Board’s decision to reject the claim.

18.  Having considered the materials before us, we are of the view that the Judge was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

19.  For these reasons, this appeal is dismissed.

[1]   [2022] HKCFI 1235, HCAL 418/2019

[2]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).