RE BUI THI THUY

CACV 566/2020

[2021] HKCA 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 566 OF 2020

(ON APPEAL FROM HCAL 970/2018)

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J U D G M E N T

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

Introduction

1.  On 30 May 2018, the applicant sought leave from the court to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 November 2017.  In that decision, the Board dismissed the appeal against the decision of the Director of Immigration (“the Director”) dated 26 April 2017 rejecting the applicant’s non-refoulement claim.

2.  As the application was not made within three months of the Board’s decision, the applicant needed an extension of time under Order 53 Rule 4(1) of the Rules of the High Court.

3.  On 15 October 2020, Deputy High Court Judge C P Pang (“the Judge”) refused to grant the extension of time and refused to grant leave to the applicant to apply for judicial review. 

4.  On 21 October 2020, the applicant filed a Notice of Appeal against the Judge’s decision.  On the same day, the applicant agreed in writing (in Chinese) for the appeal to be processed on the papers without an oral hearing.

5.  This is our judgment in the appeal.

Background

6.  The applicant is a Vietnamese national.  She entered Hong Kong illegally via the Mainland on 12 September 2015.  On 16 September 2015 she lodged a non-refoulement claim.  The applicant’s claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by her creditor (and his gangsters) who is a loan shark and Triad member.  The factual background was set out at paragraphs 8 to 19 of the Board’s decision.

7.  By notice of decision dated 26 April 2017, the Director assessed the applicant’s claim on all applicable grounds and rejected the same.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

8.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 September 2017 during which the applicant gave oral testimony.  The Board found that the core of the applicant’s factual account lacked credibility, that her evidence was embellished, inconsistent or implausible on some material issues. The Board rejected her evidence as to the harm she had allegedly suffered from the debt collection activities.  The Board determined that the applicant’s claims relating to extortion, loan shark activity, and persons trying to kidnap her were manufactured or exaggerated.

9.  Thus the Board determined that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable.  Therefore, on 8 November 2017 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

10.  In her affirmation of 30 May 2018 in support of her Form 86, the applicant deposed that the Board was biased and overlooked issues relating to her in the assessment of credibility. She also deposed that those wishing to harm her have ties to the criminal underworld and collude with the police in Vietnam.

11.  Following consideration of the documents only, on 15 October 2020 the Judge refused to extend the time for judicial review and dismissed the application.  The reasons for the refusal were set out at [12] – [22] of the Form CALL-1 ([2020] HKCFI 2640) as follows:

“ Application out of time

12. It must be pointed out first that the applicant’s intended application for judicial review was made out of time. 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 date 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. 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.

13. The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

14. In this case, the 3-month time limit as against the Board’s decision expired on 8 February 2018 and the application was late by more than 3 months. The delay was a significant one, for which the applicant did not provide any explanation. I do not see any satisfactory or valid reason for the undue delay.

Merits of the intended application

15. As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

16. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts in particular the harm she experienced based on the major inconsistencies and illogicality in the applicant’s evidence. On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

17. Moreover, the Board found that internal relocation is a viable option for the applicant.

18. As mentioned above assessment of evidence, the risk of harm, and availability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

19. The complaint raised by the applicant in her affirmation contained no particulars to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was her bare assertion and only a regurgitation of what she told the Director and the Board. There is no reasonably arguable basis to challenge the Board’s findings.

20. And even on her own account, the alleged past ill-treatment was of low intensity and frequency. It came nowhere near the level of severity required by law to constitute torture or CIDTP and is indicative of at the most a remote and unreal risk of harm.

21. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately. There cannot be any criticism of the Board’s determination which is eminently reasonable.

22. 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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.”

Appeal to this Court

12.  In her Notice of Appeal, the applicant reiterated the factual basis of her claim.  But she did not formulate any grounds of appeal identifying what she alleged to be the errors of the Judge.

13.  The applicant lodged her written submissions on 15 December 2020.  Other than reference to the factual background and procedural history, those submissions consist largely of general statements of law quoted from case law and assertions of unfairness and bias without particulars.

14.  The applicant also referred to the failure of the Board and the Judge to consider state acquiescence in this case.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose 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 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 (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.

(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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.  The applicant did not in her Notice of Appeal or submissions provide any particulars in support of her arguments that the Board had acted in a procedurally unfair manner.  She also did not identify any specific errors in the Judge’s decision.  Bare assertions are not effective grounds to support an appeal in judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility and its rejection of her evidence.  The Board determined that there was no real risk of harm in the event of refoulement, and concluded that internal relocation was viable.  Such findings are within the province of the Board and the judge was correct in finding that there was no public law ground warranting the court’s interference.   

18.  The submission on state acquiescence had not been raised before the Judge and has no evidential or factual basis in support.  We cannot see how the applicant can rely on the same in view of her own evidence that she had not reported the alleged assaults and detention to the police.  Her case could not meet the test for the application of such concept as explained in Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16]-[19].

19.  We agree with the Judge that the applicant had not provided any satisfactory explanation for the delay in applying for judicial review.

20.  The Judge is plainly right to refuse to grant extension of time and leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

21.  For these reasons, the appeal is dismissed.