NONG THI THANH v. TORTURE CLAIMS APPEAL BOARD

CACV 90/2023, [2023] HKCA 1379

On Appeal From [2023] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 90 OF 2023

(ON APPEAL FROM HCAL NO 1197 OF 2022)

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J U D G M E N T

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

Introduction

1.  On 10 March 2023, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant to seek leave to apply for judicial review against the decision made by the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 10 October 2019 and dismissed the leave application.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 March 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds. 

2.  On 23 March 2023, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions of Registrar of Civil Appeals made on 23 March 2023, the applicant should lodge her written submissions on or before 6 April 2023.  She failed to do so.  The Registrar had directed that in the event the applicant failed to lodge her written submissions by the deadline, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Vietnam.  On 2 September 2014, she entered Hong Kong hiding under a vehicle.  She surrendered to the Immigration Department 7 months later.  She raised her claim for non-refoulement by way of written representation dated 9 April 2015.  Subsequently on 21 February 2017, she submitted her non-refoulement claim form alleging that if refouled, she would be harmed or killed by her husband’s creditors for failing to repay his debts.  The factual background of this case was succinctly summarized by the Judge in [4] – [7] of the Form CALL-1 ([2023] HKCFI 466).

6.  By a Notice of Decision dated 21 March 2017, the Director having 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], determined it against her.

7.  On 29 March 2017, the applicant appealed the Director’s decision to the Board.  The applicant, however, failed to attend the scheduled oral hearing on 24 June 2019 before the Board without any explanation.  Apparently she had failed to report recognisance since 26 April 2018 and letters posted to her stated address had been returned.  Accordingly, the Board proceeded to deal with her appeal on paper.  By its decision dated 10 October 2019, the Board dismissed the appeal. For reasons set out at [31] to [34], the Board found that the applicant’s allegations were vague, lacked details and had no collateral support.  She could not provide any details about the identity of the creditor, the amount of the debt, or when or where the loan was raised.  The Board did not believe that the applicant would face a real risk of harm or ill-treatment upon her return to her home country [7] – [13].  In any event, her problem with her husband’s creditor was a private monetary dispute between them without any official involvement.  Reliable and objective country of origin information (“COI”) suggested that there is reasonable state protection [23], [29] and internal relocation is a viable option [18], [24], [30].  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Decision of the court below

8.  On 3 November 2022 (some 3 years later), the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision of 10 October 2019.  The application was substantially out of time (O.53, r.4 of Rules of High Court (Cap.4A)).  She did not provide any ground for relief or explain the reason for the delay, but merely stated in her supporting affirmation that she applied for judicial review against the Director’s decision. 

9.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  Upon consideration of the Director’s and the Board’s respective decisions, the Judge refused to extend time for application for leave to apply for judicial review and dismissed the application on 10 March 2023 for the reasons set out in [12] – [19] of his decision:

“12. On 3 November 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

13. By then the Applicant was also seriously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14. As the last day of the three-month period for her to file her Form 86 fell on 10 January 2020, the Applicant was therefore some 2 years and 10 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of 2 years and 10 months must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for the Applicant’s such serious delay.

16. As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

17. 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.

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

19.  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

10.  On 23 March 2023, the applicant filed a Notice of Appeal in which she set out the following grounds:

(1)  If the applicant returns to Vietnam, her life will be seriously threatened because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent.  They disregard the law and are willing to kill people.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.  The nationwide social network gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

11.  In her supporting affirmation of the same date, she deposed:

“…I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

Additionally, I was informed that the [Director] and the [Board] did not see the grounds to reverse their decision.”     

Legal principles

12.  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 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 we 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

13.  The grounds provided by the applicant in her Notice of Appeal are just bare assertions without particulars or basis.  She did not in her Notice of Appeal or supporting affirmation provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  She did not provide any explanation for her substantial delay in filing the Form 86.  

14.  It is clear from the Board’s decision that the applicant failed to substantiate her non-refoulement claim on all applicable grounds.  The dispute was private in nature without any state involvement.  Objective COI suggested reasonable state protection is available and internal relocation is a viable option to avoid any possible harm.  Assessment of evidence, COI and risk of harm is within the province of the Board.  The Board was entitled to make the findings as it did and the judge was right to find no valid public law ground to intervene.

15.  Having considered the materials before us, we are of the view that the Judge’s observations and findings are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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