RE NGUYEN THI THANH LOAN

CACV 58/2023, [2024] HKCA 280

On Appeal From [2023] HKCFI 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 58 OF 2023

(ON APPEAL FROM HCAL NO. 1405 OF 2022)

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Judgment

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

I.  The appeal

1.  On 20 February 2023, Deputy High Court Judge Bruno Chan refused to grant an extension of time to the applicant to seek leave to apply for judicial review of the decision of the Director of Immigration (‘the Director’) dated 28 October 2021 (‘the Decision’) and dismissed the application for leave to apply for judicial review.  The intended judicial review application was against the decision of the Director of Immigration (‘the Director’) dated 28 October 2021 (‘the Director’s Decision’).  On 27 February 2023, the applicant filed a notice of appeal against the Judge’s decision.  Notwithstanding the direction for lodging submissions given by the Registrar of Civil Appeal, the applicant did not lodge any written submissions in this appeal.

II.     Background

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally in April 2021 and was arrested in May 2021 for possession of a fake identity card.  She was subsequently convicted and sentenced to 12 months’ imprisonment.  On 9 June 2021, she lodged a non‑refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor, Toan, as she was unable to repay her debt.

III.   The Director’s decision

3.  The Director rejected the applicant’s non‑refoulement claim on torture risk, BOR 2 risk, BOR 3 risk and persecution risk.

4.  The Director assessed the risk of harm as low since the alleged past ill‑treatments had not attained the prescribed minimum level of severity.  The Director considered it to be a private monetary dispute between creditor and debtor, and the actions of Toan and his associates have not shown a real intention to seriously harm the applicant, but only an intention to chase for repayment.  The acts complained of do not involve the state and there was no evidence to demonstrate that the state was in any way connected with Toan and his associates.  There was also no evidence to show that the state had participated in, was indifferent to, or had encouraged such acts. The Director also held that reasonable state protection and internal relocation were available to the applicant. 

IV.     The applicant’s appeal/petition and subsequent withdrawal                                      

5.  On 5 November 2021, the applicant filed an appeal/petition with the Torture Claims Appeal Board (‘the Board’) to appeal against the Director’s Decision.  However, before the appeal/petition was heard by the Board, the applicant had, by signed letter dated 15 July 2022, withdrawn her appeal/petition.

6.  By letter dated 8 August 2022, the Board, after consideration of the applicant’s withdrawal of her appeal/petition, and being satisfied that she understood its consequences and that it was freely sought, directed for the appeal/petition to be withdrawn and confirmed that the Director’s Decision would remain.

V.       The Judge’s decision

7.  The Judge dealt with the application on paper in accordance with the applicant’s indication that she did not request for an oral hearing.

8.  The Judge noted the Board’s acceptance of the applicant’s withdrawal of her appeal/petition, and examined the merits of her application for leave to judicially review the Director’s Decision against the context that it was out of time.  As the applicant failed to put forward any proper ground for the intended judicial review, the Judge did not find any reasonably arguable basis for her intended application.  In particular, the Judge considered both the Director’s Decision and the Board’s acceptance of the applicant’ withdrawal of her appeal/petition, and did not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply the high standards of fairness in their respective consideration and assessment of the applicant’s claim and withdrawal.

9.  In the circumstances, the Judge was not satisfied that there is any prospect of success in the intended application for judicial review, and in the absence of any good reason for her delay, refused to extend time and dismissed her application on 20 February 2023.

VI.     Grounds of appeal

10.  In the notice of appeal and her affirmation filed on 27 February 2023, the applicant stated her grounds of appeal as follows :

1)  If she returns to Vietnam, her life would be seriously threatened or she would probably be killed 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.  She had previously been assaulted by Toan and it is possible for him and his associates to do so again.  She would be tortured, beaten, or killed by these gangsters. 

2)  The Director’s suggestion on internal relocation to avoid Toan is completely unfeasible as she would face many difficulties and obstacles in the new location.  She described her health as ‘not good’ and that she is not an active person, and asserted that she may be disadvantaged in the labour market as a result.

3)  With the nationwide social network of gangsters and their clandestine connections with corrupt people in the government and police, it is possible for Toan and the gangsters to find out her new residence in Vietnam.  

4)  The Director and the Board ‘did not see the grounds to reserve their decisions’. 

11.  The applicant has given written consent to the disposal of her appeal on paper without an oral hearing. 

VII.   Legal principles

12.  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], of which the following are particularly apposite :

1)  The assessment of evidence, COI materials, risk of harm, state protection, and viability of internal relocation are primarily within the province of the Board and the Director, as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness, or irrationality in the decision [14(1)].

2)  An appeal against the refusal of leave by a Judge in the Court of First Instance is not the occasion for running arguments which could and should have been raised but were not raised before the Judge [14(2)].

3)  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and 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 [14(2)].

4)  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board (or the Director) afresh as if it is a fresh application for judicial review [14(6)].

VIII.  Our view

13.  The Judge was right to note that the application for leave to apply for judicial review of the Director’s Decision was out of time in accordance with Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) (‘RHC’), which requires an application for leave to apply for judicial review to 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 the present case, the application was only made by the Form 86 filed on 5 December 2022, more than a year after the Director’s Decision dated 28 October 2021.  On any basis, the delay is substantial.

14.  To justify an extension, the applicant must show ‘good reason’ for extending the period.  In considering whether good reason has been shown, the Court will have regard to inter alia (1) the length of the delay; (2) the explanation for the delay; (3) the merits of the substantive application; and (4) any prejudice to the putative respondent and to public administration.

15.  As the delay in the present case is substantial, the reason for extending the time must be cogent. However, the applicant has failed to give any explanation for the delay.

16.  Further, the intended application to judicially review the Director’s Decision is devoid of merits for the reasons discussed below.

17.  The applicant has at no stage suggested that her earlier withdrawal of the appeal/petition from the consideration by the Board was invalid, in the sense of it not being the result of a deliberate and informed decision.  Nor has the applicant explained why she now seeks to judicially review the Director’s Decision.  Further, neither the Form 86 nor the affirmation in support contain any grounds upon which the application is made, and the applicant does not contend that the Board appeal procedure was not a suitable alternative safeguard (indeed, she had originally pursued such an appeal before withdrawing it).

18.  In the circumstances, applying the well-established principle that judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist, the Judge was entitled to refuse to grant an extension of time and dismiss the application for leave to apply for judicial review by this reason alone. 

19.  For the above reason, there is no merit in the applicant’s intended application for judicial review.  Moreover, apart from simply indicating that she sought leave to judicially review the Director’s Decision, neither the Form 86 nor the affirmation in support contain any particularized grounds, and the Judge was plainly right to find that the intended application had no reasonably arguable basis.

20.  All four of the grounds of appeal in the notice of appeal and affirmation in support are directed at the Director’s Decision, and do not show in any respect, any error in the Judge’s decision.  Nor were they even raised before the Judge.  They are not viable grounds of appeal and the appeal should be dismissed.

21.  In any event, we have reviewed both the Judge’s decision and the Director’s Decision in light of the four grounds advanced.  As mentioned, the assessment of evidence, COI materials, risk of harm, state protection, and viability of internal relocation are primarily within the province of the Director in the present case.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness, or irrationality in the decision.  We see no such errors.

22.  For the above reasons, there is no basis to disturb the Judge’s decision and the appeal is dismissed.