RE NGUYEN THI THANH

CAMP 484/2022

[2023] HKCA 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 484 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1214 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“Judge”)  dated 11 March 2021[1] refusing the applicant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 25 May 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 18 October 2017 rejecting her non-refoulement claim.

2.  On 21 January 2022, Deputy High Court Judge To refused to extend time for the applicant to appeal against the Judge’s decision.[2]

Background

3.  The applicant is a national of Vietnam, born in 1967.  She surrendered herself to the Immigration Department on 8 April 2016, claiming that she entered the Mainland legally and from Shenzhen entered Hong Kong illegally the day before.  She made a non-refoulement claim by written representation on 2 September 2016.  Her claim was based on the fear that if she returned to Vietnam, she would be harmed or killed by a creditor who was a moneylender with triad background because she had been unable to repay her debt.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By notice of decision dated 18 October 2017, the Director rejected the applicant’s claim.

5.  The applicant appealed to the Board against the decision of the Director.  The Board decided to determine the appeal on the papers.  The Board noted that the applicant had not produced any evidence to support the existence of the loan or the incidents in which she was allegedly assaulted.  The Board considered that the evidence at most suggested that the creditor and her associates intended to put some pressure on the applicant to repay the loan.  The Board concluded that the applicant had failed to show there was a genuine and substantial risk of ill-treatment if she returned to Vietnam.  The Board also considered that the applicant could safely relocate within Vietnam.  Accordingly, in its written decision issued on 25 May 2018, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

6.  On 28 June 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  The applicant did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation she stated that she would face a genuine and substantial risk of being subjected to torture or even killed by the creditor if she returned to Vietnam.

7.  Based on consideration of the documents alone, on 11 March 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [12] – [17] of the Form CALL-1 as follows:

“ 12. In the present case, the Board found there was no reliable evidence to show the existence of the loan and the assault incidents. In any event, the Board found that even if the primary events were true, the ill-treatment she received did not reach the minimum level of severity required for international protection, and was short of a genuine and substantial risk of harm. Further, it also found that reasonable state protection and internal relocation alternative are available to the applicant.

13. As mentioned above, assessment of evidence, the risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

14. The Board did not conduct an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277. I do not find the course adopted by the Board to be unfair. Even if the Board were to accept the primary facts alleged by the applicant, it would have rejected her claim on the ground that there was not a real risk of serious harm and that any possible risk of harm would have been reduced by the availability of state protection and internal relocation. An oral hearing would not have assisted the applicant in any event.

15. The Form 86 and affirmation of the applicant did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board. They contained nothing to suggest that she was prejudiced because of the lack of a hearing. It was only a repetition of her claimed fear which has been duly considered by the Board. It cannot constitute a viable ground to challenge the decision of the Board.

16. Indeed, the applicant’s claim is extremely weak. Even on her own account, the alleged past ill-treatment was of low intensity and frequency indicative of an unreal risk of harm at the most. It came nowhere near the level of severity required by law for the claimed protection. The findings of the availability of state protection and internal relocation alternative by the Director and the Board are wholly reasonable. On this basis, there is no reason to offer international protection to the applicant.

17. 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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.”

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 23 June 2021 to seek an extension of time to appeal against the decision of the Judge.  The applicant did not explain in the summons or the accompanying affirmation why she was late.

9.  Deputy Judge To dealt with that application on paper.  He directed that the applicant provide an explanation for her delay and the intended grounds of appeal, but she failed to do so.  In his written decision dated 21 January 2022, Deputy Judge To dismissed the application as there was neither an explanation of the delay nor proper ground of appeal.

The renewed application before this Court

10.  Ten months later, by summons filed on 21 November 2022, the applicant seeks an extension of time from this court for her to appeal.  Her affirmation mentioned appealing against the order of 21 January 2022 but it is the decision of the Judge dated 11 March 2021 refusing to grant leave for judicial review that should be the proper target.  We shall therefore treat this as an application for extension of time to appeal against the Judge’s decision of 11 March 2021.

11.  In the accompanying affirmation, the applicant stated she understood there was a good ground of appeal that was not necessarily considered below, but did not specify what it was.

12.  Despite the directions of the Registrar of Civil Appeals dated 21 November 2022, the applicant has not lodged any written submissions in support of her application.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

15.  There was a substantial delay by the applicant in taking steps to appeal, and also in taking out a renewed application for time in this court.  She has failed to provide any explanation for the delay. 

16.  In any event, we are satisfied that extension of time should be refused because of lack of merits in the intended appeal.  In the present case, the Board found the applicant’s evidence lacking in credibility and rejected her core claim that she owed a loan to a creditor with triad background.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  Judicial review is not a further avenue of appeal.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural defect resulting in unfairness, and irrationality in the ultimate decision.  The applicant has wholly failed to advance any such public law grounds; nor can we see any from the materials before us.

17.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

18.  We do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.