TRINH THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 70 /2024, [2024] HKCA 1095

On appeal from [2024] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 70 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1183 OF 2019)

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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 3 January 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement claim[1].

2.  On 19 January 2024, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 26 March 2024[2].

3.  On 19 April 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Vietnam.  She entered Hong Kong on 12 January 2015 as a visitor and subsequently overstayed.  She was arrested by the police on 26 September 2015 and lodged a non-refoulement claim on 5 October 2015.  Her claim was made on the basis that she would be harmed or killed by her creditor and his gang if she is to be returned to Vietnam because she failed to repay the debt.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 25 June 2018, the Director of Immigration (“the Director”)  rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

6.  The applicant appealed against the Director’s decision to the Board.  The appeal was heard before the Board on 20 December 2018.  The Board found the applicant’s accounts of the core issues inconsistent and lacked credibility because of the significant inconsistencies in her evidence and her failure to give reasonable explanation for the inconsistencies.  Thus, the Board considered that the applicant failed to show that the alleged risk of harm is real.  The Board also found that the applicant can relocate without undue hardship in Vietnam in any event.  The Board concluded that the applicant’s application for non-refoulement protection fails on all applicable grounds and dismissed the appeal on 11 April 2019.

The intended judicial review

7.  On 3 May 2019, the applicant filed a Form 86 and an affirmation in HCAL 1183/2019 to seek leave to bring judicial review against the Board’s decision.  In her supporting affirmation, she reiterated the problem she faced in Vietnam without stating any specific grounds against the Board’s decision. 

The judge’s decision

8.  DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant does not have any valid ground to challenge the Board’s decision and there is no error of law or procedural unfairness in the Board’s decision.  Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 3 January 2024.

Grounds of intended appeal

9.  The applicant stated her grounds of appeal in the written submissions 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 adjudicator acted in a procedurally unfair manner without properly assessing her credibility.

Analysis and disposition

10.  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.

11.  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 order was made on 3 January 2024 and the applicant was late by two days when she took out the summons at the court below on 19 January 2024.  In her affirmation filed in the present application on 19 April 2024, she explained that she was late because she had to find someone to help her with the application as she was poorly educated and does not know much about the law.

12.  Even if the court is minded to accept her explanation in light of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising 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 Country of Origin Information 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.  The Board had duly assessed the applicant’s credibility and given detailed reasons for its findings against the applicant’s credibility in §§68 to 80 of its decision.  The applicant failed to identify any particular errors, procedural unfairness or irrationality in the decision of the Board.  She has not adduced any evidence to refute the Board’s findings.  She also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  For the above reasons, there is no prospect of success in the intended appeal.  We refuse to allow the applicant to appeal the decision of 3 January 2024 out of time and dismiss the summons filed on 19 April 2024.