VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 104/2023, [2023] HKCA 778

On Appeal From [2023] HKCFI 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2023

(ON APPEAL FROM HCAL NO 865 OF 2022)

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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 6 April 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 28 March 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 1 August 2022, whereby the Board refused to extend time to the Applicant to file her notice of appeal against the decision of the Director of Immigration (“the Director”) dated 17 August 2021 under section 37ZT of the Immigration Ordinance (Cap 115).

BACKGROUND

2.  The Applicant is a national of Vietnam. She entered Hong Kong illegally on 8 May 2021 and was arrested by the police on 10 May 2021. On 31 May 2021, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor. Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 17 August 2021, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. Essentially, the Director considered that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm to her; (ii) state protection would be available to her; and (iii) internal relocation was a viable option for her.

4.  On 25 April 2022, the Applicant appealed the Director’s decision to the Board. The appeal was lodged 7 months and 24 days out of time. On 1 August 2022, the Board refused to extend time to the Applicant to file her notice of appeal (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“The applicant’s notice of appeal/petition was filed after 1 August 2021, when the new section 37ZT of the Immigration Ordinance came into effect. The Board considered the applicant’s reason of delay. It noted that, on the available information, the applicant was notified of the time limit in relation to the filing of such notice of appeal/petition [8]-[11]. Meanwhile, having considered the applicant’s explanation that the delay was due to lack of language assistance and that she had lost the files in transit to another prison, the Board found that such explanation had no evidential support and that the applicant had not exercised her due diligence in filing the notice of appeal/petition [12]-[13].”

THE JUDGE’S DECISION

5.  On 31 August 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in her supporting affirmation of the same date.

6.  On 28 March 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] The question before this Court is whether the Board was correct in refusing to extend time to the applicant to file her notice of appeal in accordance with section 37 ZT of the Ordinance, the relevant parts of which I shall set out below …

[16] The Board had ascertained from the Duty Lawyer Service that the duty lawyer had, through an interpreter, explained to the applicant the deadline for the applicant to file her notice of appeal. The applicant had confirmed this by having signed a confirmation. The Board further considered the explanation given by the applicant for her delay in filing the notice of appeal.

[17] The applicant had given 2 reasons for her delay. The first reason is that there was no Vietnamese that she could ask how to write when she was in prison. The second reason is that she lost her file when she was transferred to another prison

[18] The Board considered that the applicant was advised of the 14-day deadline for her appeal on 20 August 2021 (the date of the Director’s Decision is 17 August 2021). On 23 March 2022, when she was being detained in Castle Peak Immigration Centre, she wrote a letter to the Board requesting for document for lodging appeal.

[19] The Board rejected her first reason because the applicant did not provide any evidence as to what she did in trying to get somebody to assist her in filing the notice of appeal within the 14-day period. The Board reject the applicant’s second reason as it found that there was no evidence in writing as to when she lost the document for lodging appeal and what she did in trying to obtain the document within the period specified. The Board also said that there was no evidence in writing to show that the applicant had exercised all due diligence to file the notice [of appeal] within the period specified. The Board further found that there was no evidence in writing to show that the applicant had exercised all due diligence to file the notice [of appeal] within the period specified.

[20] Taking into account of the period of delay of 7 months and 24 days, the Board said it could not find any reason to allow the applicant’s late filing of the notice of appeal. It disallowed the filing of the notice of appeal. In effect, the applicant’s appeal was dismissed.

[21] It remains for this Court to consider whether the Board had exercised its discretion reasonably within the context of the Ordinance and the administrative law.

[22] It is clear that the Board had followed closely the statutory provisions under section 37 ZT of the Ordinance. It required evidence in writing from the applicant to show that she had exercised all due diligence to file the notice within the period specified, but failed to file the notice within the period because of circumstances beyond her control.

[23] The applicant should be able to tell the Board what she had done to prepare the notice of appeal and file it within time after she had been advised of the 14-day deadline. When she wrote to the Board for document for her appeal, she was, by then, out of time for about 6 months. It is, therefore, incumbent upon her to explain what she had done for her appeal during this period of time. Obviously, the Board rejected her explanation that there was no Vietnamese to advise her on how to appeal as there was no evidence in writing to support her allegation. This explanation is also not plausible as the applicant should be able to seek assistance from the authority in which she was being detained. For the reasons given above, the Board was justified to reject the applicant’s explanation of losing her file for her appeal.

[24] In the circumstances, the Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[25] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

THIS APPEAL

7.  In her Notice of Appeal filed on 6 April 2023, the Applicant repeats her allegation that if she returns to Vietnam, her life will be seriously threatened, and she may even die, because most of the creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. She also disagrees with the Director’s suggestion that she can relocate to live in another part of Vietnam away from her home.

8.  In her affirmation filed on 6 April 2023, the Applicant states that she understands there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, but she fails to identify what that ground may be.

9.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 6 April 2023.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.  The Applicant has failed to identify or show any error in the Judge’s decision of 28 March 2023, and has failed to raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merits, and is dismissed.