RE NGUYEN THI KIM ANH

CAMP 107/2023, [2024] HKCA 225

On Appeal From [2023] HKCFI 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 107 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 709 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 16 March 2023, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge K W Lung (“the Deputy Judge”)  dated 9 March 2023.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2023] HKCFI 526)  (“the EOT Decision”)  against his earlier order dated 19 January 2023, refusing the applicant’s application for leave to apply for judicial review ([2023] HKCFI 181)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 5 March 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 26 January 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

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

Background

4.  The applicant is a national of Vietnam.  She last entered Hong Kong illegally on 22 June 2017 and surrendered to the Immigration Department on the same day.  On 10 July 2017, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed and/or killed by her creditor owing to her default in loan repayment.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that her claim failed on all applicable grounds.

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  After reading the papers, the Board decided that the appeal could be justly determined without a hearing and considered her application on paper.  By the Board’s Decision, her appeal was dismissed. Having considered the evidence, the Board noted that the applicant’s dispute was private in nature and there was no evidence of state involvement.  The alleged injuries inflicted by her creditor also did not reach the minimum level of severity.  The Board further found that state protection and internal relocation would be reasonably available to the applicant.  As such, the Board assessed her risk of being subjected to ill-treatment upon her return to Vietnam to be low and she failed to substantiate her claim on all applicable grounds.

The Leave Decision

7.  On 13 March 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review in her Form 86.  The Deputy Judge summarised the applicant’s grounds of review found in her supporting affirmation at [12] of the Leave Decision as follows:

“(1)  Paragraph 12 said that the risk of her being harmed is low. She disagrees, saying that the creditor had increased violence after the first incident. She believes that she will be harmed or even killed if she returns to Vietnam.

(2)  She disagrees to paragraphs 13 and 14. Although there are COIs providing that the police in Vietnam are corrupt on the one hand, and on the other hand, the Vietnam government combat illegal lending business and use proper means to deal with private disputes, the fact remains that there is lack of transparency in government administration. The government supervision over the officials is at all times ineffective. It is highly possible that the officials have connection with the illegal business. She does not have confidence in the Vietnam government.

(3)  She disputes paragraph 15, which says that the loan is a private business between herself and the creditor. She believes it is highly possible that government officials are connected with the creditor.

(4)  She disputes paragraphs 18 to 24 on internal relocation. It takes very heavy burden for the family to move to live in another place. Besides, the elderlies in the family may not be able to adapt new environment, which will be a severe mental stress for them.

(5)  She takes issue with paragraph 29, which says that the case does not involve human rights issues. Although she was not injured bodily, she is suffering from immense mental stress for fear that the creditor may come to find her at any time if she returns to Vietnam.

(6)  She disagrees to paragraphs 37 to 40 on state protection. The fact that the police had confiscated her properties shows they are connected with the creditor. To report the matter to police is dangerous.”

8.  The Deputy Judge then set out his reasons for dismissing the applicant’s application for leave to apply for judicial review at [13] - [19] of the Leave Decision:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

16. As to the grounds set out in paragraph 12, supra, grounds (1), (2)  and (3)  are her opinions or speculations without any evidence to support. Ground (4)  is the issue on internal relocation. The Board had obviously considered the difficulty in moving to another place to live. However, if such option is a viable option, then Hong Kong government should not bear the burden of accommodating her or her family under the Convention. Ground (5)  cannot assist her because the mental stress she described does not reach the minimum level of severity under BOR 3 risk. Ground (6)  is the isolated incident, which cannot be applied across Vietnam as according to the COI, the Vietnamese government has been revising its policies on police corruption and its administration.

17. 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.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 7 February 2023, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was five days late with her intended appeal.  In her summons, she did not give any ground in support of her application.  In her supporting affirmation, she only alleged that she had a good ground of appeal but did not further explain or elaborate what the alleged ground was.

11.  By the EOT Decision, the Deputy Judge held that she gave no good reason for her delay and that she failed to raise any valid reason to show that she had a realistic prospect of success in her intended appeal. Accordingly, the Deputy Judge refused her application for extension of time to appeal.

The Present Application

12.  By summons and supporting affirmation (attaching a written statement)  all filed on 16 March 2023, the applicant applied for leave to appeal against the EOT Decision.  In the summons and supporting affirmation, the applicant only stated that she had a good ground of appeal but failed to specify what the said ground was.  In her supporting affirmation, she stated that the Court’s decisions were reached unfairly without allowing her an opportunity to clarify her case and her Country’s situation.  In her written statement, she alleged that her life would be seriously threatened if refouled and that internal relocation would be unfeasible as she was not an active person.  She further alleged that it would be dangerous for her to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with the corrupt people in the government and police apparatus.  The applicant also contended that the Immigration Department failed to consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 16 March 2023, the applicant did not lodge any written submissions.

Discussion

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

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  Although the applicant’s delay of five days is not insignificant, for present purposes, we will focus on the merits of her application.

17.  The 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].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an 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: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  At the outset, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  Although she alleged she had a good ground of appeal, she did not specify what the said ground was.  Moreover, those contentions were directed mainly at the decisions of the Director and the Board and failed to point out with particulars how the Deputy Judge had erred in the Leave Decision.  As such, they do not constitute proper grounds of appeal.  The appeal must fail on this basis alone.

19.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 16 March 2023 is dismissed.