TRAN THI TINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 11/2023

[2023] HKCA 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 11 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1189 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 To (“Judge”)  dated 20 September 2022 refusing to grant 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 20 April 2018. In that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”)  dated 5 August 2016 and 5 July 2017 respectively rejecting her non-refoulement claim.

2.  On 3 January 2023, Deputy High Court Judge KW Lung dismissed the applicant’s application for extension of time to appeal.

Background

3.  The applicant is a Vietnamese national born in 1962.  She claims to have entered Hong Kong illegally on 16 March 2014.  She was arrested by immigration officers two days later.  On 23 April 2014, she raised a non-refoulement claim.  Her claim was based on the fear that if she returned to Vietnam, she would be harmed by three moneylenders, namely, Hoang, Doan and Nguyen, because of her inability to repay the debts owed to them.

4.  The applicant’s claim was first assessed by the Director with reference to BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] and rejected by notice of decision dated 5 August 2016.  The applicant was subsequently invited to submit additional information relevant to her claim on all applicable grounds including BOR 2 risk,[4] but she did not do so.  By a notice of decision dated 5 July 2017, the Director rejected the claim with respect to BOR 2 risk. 

5.  The applicant appealed to the Board against both of the Director’s decisions.  The Board held an oral hearing of the appeal on 9 February 2018, at which the applicant gave evidence and answered the Board’s questions.  In its decision dated 20 April 2018, the Board dismissed the appeal and affirmed the decisions of the Director.  The reasoning of the Board was summarised by the Judge at [12] – [19] of the Form CALL-1 as follows:

“ 12. The Applicant testified before the Board. The Board found her evidence inconsistent with that given in her NCF. It found the Applicant incredible and her account missing in important details, inconsistent and inherently improbable. The Applicant was unable to provide important details as to how she used the proceeds from the loans, how much she owed and how much she had repaid the Moneylenders. She gave different accounts of the interest paid and the interest rate. She sometimes said the interest rate was 30% per month and at other times, she said it was 3%. She could not explain the inconsistencies. Whatever the interest rate, she could not come up with a calculation which tallies with the amount of interest she claimed she had paid. She was vague and confusing as to the amount of principal repaid. The Board also found her arrangement with Hoang for suspending payment for two years between 2003 and 2005 inherently improbable.

13. In summary, the Board found the Applicant incredible. It rejected her claims about having borrowed from the Moneylenders and having been ill-treated by them as completely false and fabrications on her own. Accordingly, the Board found she had failed to prove the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM.

14. Then, the Board went further and assessed the Applicant’s claim on the assumption that her case as she asserted were true. Applying the law applicable to non-refoulement protection under the USM to the facts as the Applicant alleged, the Board found that the ill-treatment inflicted on her by the Moneylenders was to give her pressure to pay and that the Moneylenders had no intention to kill or seriously harm her. It therefore assessed the risk of harm she would face on her return to Vietnam to be low. It also found that the Moneylenders were not state officials and the ill-treatment on the Applicant was not inflicted with the consent or connivance of state officials. Hence, she is not entitled to protection under Torture Risk ground.

15. In respect of BOR 2 Risk ground, the Board found the Applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under BOR 2 being violated upon her return to Vietnam.

16. As for her claim under BOR 3 Risk ground, the Board found, apart from the fact that her risk of harm is low, the harm she would face on her return to Vietnam would not attain the minimum level of severity.

17. In respect of her claim under the Persecution Risk ground, the Board found the risk of harm to be low and that the reason for her persecution arose out of her inability to repay her loans in a moneylending transaction and not for any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.

18. Based on authoritative and credible country of origin information (‘COI’), the Board was satisfied that adequate state protection is available. Although corruption is prevalent in Vietnam, the government has been trying very hard to fight corruption, encourage complaints against corruption and government ineffectiveness, and prosecute corrupt officials. On the basis of the COI, the Board also rejected her claim about not being able to internally relocate to other parts of Vietnam without the necessary papers as unfounded. It considered the Moneylenders were small-scale operators within their respective localities and would not have the necessary resources to locate her outside their local area of operation. The Applicant’s evidence also showed that she was able to move to another province and work as a domestic helper without any problems. Hence, given her education and work experience, the Board found it would not be unreasonable to expect her to relocate to other parts of Vietnam.

19.  For the above reasons, the Board dismissed her appeal against the Notices.”

The Judge’s decisions in the court below

6.  On 25 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, without specifying any grounds in that form.  In the accompanying affirmation, the applicant simply said that if she returned to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditors and their men because she could not repay the debts.

7.  The applicant was invited by the Court of First Instance by letter dated 14 October 2020 to lodge submissions with the court, but she did not respond.  The Judge, having considered the application on the basis of the documents alone, issued his decision on 20 September 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [22] – [24] of the Form CALL-1 as follows:

“ 22. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that she disagreed with the finding of the Board that it is safe for her to return to Vietnam. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Vietnam. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

24.  The Board found the Applicant incredible and rejected her evidence.  She has therefore failed to prove the factual basis in support of her claim.  Nevertheless, the Board went further and assessed her claim on the basis of the case as she asserted.  Even then, the Board found she was not entitled to protection.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant’s application is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Hence, leave to apply for judicial review is refused.”

8.  The applicant did not appeal within the period of 14 days as prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A).  Instead she filed a summons in the Court of First Instance on 24 November 2022 seeking an extension of time to appeal.  The application was determined by Deputy High Court Judge KW Lung on paper, and dismissed in his decision of 3 January 2023 on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 10 January 2023, the applicant made another application for extension of time for her to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons, the applicant asked for leave to advance a new sole ground of appeal, but did not specify what background was.  In her supporting affirmation, she said that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.  In a “Statement” lodged together with her summons and affirmation, the applicant stated that if she returned to Vietnam, her life would be seriously threatened, because the creditors and gangsters in Vietnam were cruel and violent, and willing to kill people to satisfy their anger and ferocity.  She said it was not feasible for her to relocate within Vietnam because her health was not good, she was not an active person, and there was no guarantee she would be able to adapt to the new place and find a job.  She said that with the nationwide network of gangsters and their clandestine connections with the government and the police, it would be quite possible for the creditors to find out her new residence.  She claims that the Immigration Department did not consider her human rights.

10.  The applicant did not lodge any further written submissions beyond the documents mentioned above. 

11.  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

12.  The applicant has not explained why she delayed in filing an appeal.  Her delay of over 50 days in taking steps to appeal was substantial.  No extension should be granted unless there are real prospects of success in the intended appeal.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. 

13.  In the present case, the Board heard the applicant and evaluated the evidence, before coming eventually to the conclusion that the applicant’s evidence was internally inconsistent, inherently improbable, and incredible.  Further, the Board considered that even on the basis of the applicant’s allegations, she had failed to show a real risk of the requisite level of harm.  The Board also found that state protection was available and that internal relocation in Vietnam was feasible.  These are conclusions that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  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 unfairness, or irrationality in the ultimate decision.  The applicant has failed to establish any such public law grounds.

14.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to raise any grounds of appeal 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 merit in the underlying application for leave to apply for judicial review. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.