NGUYEN THI HONG v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 453/2021

[2022] HKCA 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 453 OF 2021

(ON APPEAL FROM HCAL NO 1483 OF 2018)

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J U D G M E N T

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

1.  On 12 October 2021, the Applicant took out a summons with a supporting affirmation applying for “leave to appeal” against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 June 2021 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order dated 15 September 2020 whereby the Judge refused to grant the Applicant leave to apply for judicial review.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Vietnam. She came to Hong Kong illegally on 17 April 2014 and was arrested by police on 20 April 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam, she would be harmed or killed by her creditor for failing to repay her loan. Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2020] HKCFI 2281).

4.  By a Notice of Decision dated 9 November 2016, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  On 22 November 2016, the Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”). On 3 July 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board was not satisfied that the Applicant would face any real risk of harm from her creditor upon her return to Vietnam, and concluded that her claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

6.  On 27 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 15 September 2020, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§13-15 of Form CALL-1, the Judge stated as follows:

“13. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 38 of its decision in the absence of any oral evidence or answers to questions raised of her claim due to her failure to attend her appeal hearing, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s 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.

15. 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.”

8.  On 22 February 2021, the Applicant issued a summons applying for extension of time to appeal. On 17 June 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed her application.

THIS APPLICATION

9.  By a summons taken out on 12 October 2021, the Applicant applied to this Court for leave to appeal against the order of the Judge dated 17 June 2021. In her supporting affirmation filed on 12 October 2021 and her written submissions dated 25 October 2021, the Applicant repeated that if she returned to Vietnam, she would be harmed or killed by her creditor for failing to repay her loan.

DISCUSSION

10.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

11.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

12.  The prospect of success of the intended appeal is important. The court will not grant extension to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

13.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

14.  The Applicant’s delay of over 5 months to lodge her appeal is substantial, and the Applicant has not provided any explanation, or good explanation, for the delay. Regarding the chances of the appeal, the Applicant has merely repeated the factual basis of her non-refoulement claim. It is trite, however, that assessment of evidence on risk of harm, COI, state protection and viability of internal relocation are primarily within the province of the Director and the Board, and the court would generally not interfere with their assessment in the absence of error of law, irrationality or procedural unfairness: Re Kartini [2019] HKCA 1022.

15.  The Applicant has not provided any particulars or shown any errors in the Judge’s decision to refuse to grant leave to apply for judicial review.

16.  Overall, the Applicant has failed to raise any reasonably arguable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.  The application for extension of time to appeal is refused, and the Applicant’s summons of 12 October 2021 is dismissed.

18.  This judgment is written in English in view of the fact the decisions below were both written in English. An interpretation of this judgment can be provided to the Applicant upon her request.