LUU THI THU HUONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 159/2021

[2021] HKCA 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 159 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 892 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  This is a renewed application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 21 September 2020 refusing to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 March 2018.  By that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 May 2017 rejecting her non-refoulement claim.

3.  Having considered the applicant’s summons and affirmation dated 12 May 2021, 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, Cap 4A.

BACKGROUND

4.  The applicant is a Vietnamese national.  She claims that if returned to Vietnam she would be harmed or killed by her parents’ creditor over their loan dispute.  The Deputy Judge summarised the details of her non-refoulement claim in Form CALL-1 dated 21 September 2020 at [1] to [5][1] which it is not necessary to repeat here.

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 24 May 2017, the Director rejected the applicant’s non-refoulment claims on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].

6.  The Director took into account all relevant circumstances of the applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her parents’ creditor upon her return to Vietnam.  He also came to the view that this was a private dispute without any official involvement and that state or police protection would be available to the applicant.  Further, there was reliable and objective country of origin information showing that reasonable internal relocation alternatives were available within Vietnam, and the applicant could move away from her home district to other cities, where it would be difficult if not impossible for her parents’ creditor to locate her.

BOARD’S DECISION

7.  The applicant lodged an appeal with the Board against the Director’s decision on 1 June 2017.[6]

8.  An oral hearing took place on 9 February 2018.  The applicant gave evidence and answered questions put to her by the adjudicator of the Board.[7]

9.  On 15 March 2018, the Board dismissed her appeal.

10.  In its decision, the Board did not take any issue with the applicant’s credibility, and accepted her claim of threats to her parents by their creditor.  The Board, however, found no evidence of official state involvement that would preclude her from state or police protection.  The Board also accepted that the applicant had reasonable internal relocation alternatives within Vietnam.

11.  Hence, the applicant’s non-refoulement claim failed on all applicable grounds.

THE DEPUTY JUDGE’S DECISION

12.  The applicant filed her Form 86 on 21 May 2018 applying to judicially review the Board’s decision.

13.  In her supporting affirmation she set out three grounds for her intended challenge.  They were: (1) the Board assessed the applicant’s claim without knowing the real situation of the cruel and violent loan sharks and gangsters in Vietnam; (2) the adjudicator cherry picked country of origin information and did not attach proper weight to such information; and (3) the adjudicator was not clear about the situation in Vietnam and failed to consider the country of origin information that corruption was serious and that police were unable to protect citizens from loan sharks and gangsters in Vietnam.

14.  The Deputy Judge held that these were vague and broad assertions made by the applicant without any particulars, specifics or elaborations as to how they applied to the Board’s decision or how the adjudicator erred in the decision.  The Deputy Judge having carefully reviewed the Board’s decision did not find any basis or merit in any of the applicant’s complaints.

15.  The Deputy Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and refused her leave application.  The Deputy Judge’s reasons for refusing leave were set out at [11] to [15][8] of Form CALL-1 as follows:

“11. These are however mainly just board and vague assertions of the Applicant without particulars or specifics or elaborations as to how they applied to the Board’s decision or how the adjudicator had erred in the decision, when it is clear from the decision that the adjudicator did properly and correctly take into consideration of the relevant COI as to those issues raised by the Applicant in Vietnam including corruptions [55] – [62], police efficiency [63] – [66], judicial procedures and remedies [52] – [54] and in particularly measures taken against loan sharking [67] – [72] in the Board’s decision, of which I have carefully examined and do not find any basis or merits in any of the complaints of the Applicant. As such 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 for her intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

APPLICATION FOR EXTENSION OF TIME TO APPEAL

16.  On 6 November 2020, the applicant made an application for an extension of time to appeal against the Deputy Judge’s refusal of leave to apply for judicial review.  The applicant was one month late in her intended appeal.[9]

17.  The application for extension of time was refused on 4 May 2021 by the Deputy Judge.  He did not accept the applicant’s explanation for the delay in her intended appeal and held that the intended appeal was without merit:

“4.  In the applicant’s case, a delay of 1 month must be considered as significant, for which she explained in her supporting affirmation that she did not have the financial means to obtain legal advice regarding the appeal procedure, and by the time she was able to do so, she was already out of time with her intended appeal.

5. The court record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate her bare assertion, I am not satisfied that she has provided any good or valid reason for her delay.

6. More importantly, nor did she put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in her summons or in her affirmation in which she merely stated to have good grounds to appeal but without providing any details or particulars of what they are, while she also failed to attend the hearing of her summons without any explanation. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.”

18.  By summons dated 12 May 2021, the applicant renewed her application for an extension of time before this Court.

19.  In her affirmation in support of the present application, she gives similar reasons for the delay in her intended appeal.  She says she did not have money to seek advice on the appeal procedure and she could not approach the High Court’s Resource Centre for Unrepresented Litigants for advice.  She also states that she believes she has a good ground of appeal without identifying it.

20.  She did not file any written submissions in support of the application.

LEGAL PRINCIPLES

21.  When considering whether to extend the time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  Even if an applicant’s explanation for the delay is not accepted, the court would still examine if the intended appeal has merit.

22.  The general principles regarding an appeal in a non-refoulement judicial review case were most recently summarised in Re Mohammed Asgar [2021] HKCA 1239 at [17]-[18].  In short:

(1)   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 and/or in the process by which the decision was made.

(2)   In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge considering the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  This court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review.

DISCUSSION

23.  The applicant’s bare assertions that she did not have sufficient funds to seek advice on how to appeal and that she was unable to approach the High Court’s Resource Centre for Unrepresented Litigants for appeal is untenable.  Without further elaboration or details of what steps she took, her assertions do not provide a good, valid or proper reason for the delay.

24.  The Deputy Judge was entitled to find that the delay was significant.  This Court agrees that the applicant has failed to provide any good reason for her delay.  Nonetheless, this Court shall consider the merits of the intended appeal.

25.  This Court will only reverse the decision of the Deputy Judge refusing to grant leave to apply for judicial review if the applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

26.  The applicant has not shown any such errors or viable grounds of appeal in her summons or affirmation.  There is no prospect of success in the applicant’s intended appeal.

DISPOSITION

27.  The application for extension of time to appeal is refused, and the applicant’s summons of 12 May 2021 is dismissed.