BUI THI DIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2620/2018

[2023] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2620 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application by summons filed on 23 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 15 July 2022 (the “Order”) dismissing her application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order was made. By 23 November 2022 when the Summons was filed, it was three months and twenty-five days out of time. In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing 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 extension of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.  The almost four months’ delay is very substantial in the context of a fourteen-day period for appeal. In her Summons and supporting affirmation filed on the same day, the Applicant made no complaint that she had not received the Order and Form CALL-1 timeously. She gave no explanation for the delay in appealing but asserted in her affirmation that her life will be in danger if returned to Vietnam. She said:

“I received fresh information from my family members that my issue is still on going and I have serious threats in my home country. I decided to withdraw, and I thought I can go back to my country. Unfortunately, the matter is still in place and my life is in danger in my home country. I would like to continue my case.”

4.  Impliedly, she received the Order and Form CALL-1 timeously. Despite it was dangerous to return to Vietnam, she made a conscious decision not to pursue any appeal initially (which she said “to withdraw”). Then she changed her mind because she thought her life will be in danger in Vietnam. In substance, she is disputing the finding of fact by the Board that she is not entitled to non-refoulement protection under the Unified Screening Mechanism. A conscious decision not to exercise her right to appeal cannot constitute a reasonable explanation for the delay.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

5.  The Applicant had not furnished any grounds of her intended appeal in her Summons or supporting affirmation, other than her dispute against the Board’s finding of fact. She did not advance any specific grounds of application for leave to apply for judicial review either. Thus, in determining her Leave Application, this Court followed the principle as stated in Nupur Mst v Director of Immigration[2] and scrutinized the Board’s Decision for errors of law, procedural unfairness or irrationality. This Court could not identify any such vitiated elements and hence refused her Leave Application. The Applicant has not pleaded any specific grounds of appeal. She has not alleged what is wrong in the Court’s decision. Doing the best it can, this Court could only re-examine the Board’s Decision and its Form CALL-1 for errors of law, procedural unfairness or irrationality.

6.  Despite some inconsistencies in her evidence, the Board accepted she was telling the truth about the important aspects in her case and assessed her claim on the basis of her evidence as she asserted. The Applicant could not have any cause of complaint for such a finding which is in her favour. Her claim for non-refoulement is founded on her fear of being killed by a loan shark because of her inability to repay her loan, if she is returned to Vietnam. However, the Board found that the ill-treatment inflicted on her by the loan shark was to pressurize her into making payment and the loan shark had no intention to cause her serious harm or to kill her and her risk of being subjected to ill-treatment upon her return to Vietnam is low. The Board was also satisfied that state protection of an adequate standard is available to prevent or negate the risk. See paragraphs 13 to 16 of the Form CALL-1. All these are finding of facts which are within the province of the Board and which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in the Board’s decision.

7.  Having now rigorously re-examined the Board’s Decision and the Form CALL-1 with anxious scrutiny, this Court is satisfied that there are no errors of law, procedural unfairness or irrationality in these decisions. This Court can find no arguable grounds of appeal. This Court is therefore satisfied that there is no prospect of success in the intended appeal.

PREJUDICE TO THE RESPONDENT

8.  The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

9.  The length of delay is substantial and unexplained. Furthermore, there is no prospect of success in her intended appeal. The intended appeal has no prospect of success. To allow her leave to challenge a decision which is out of time and has no prospect of success is likely to cause serious prejudice to the intended respondent. For all these reasons, the Applicant’s application for extension of time to appeal is refused.