MAI THI XUAN v. TORTURE CLAIMS APPEAL BOARD

CAMP 198/2023, [2023] HKCA 1109

On Appeal From [2023] HKCFI 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 198 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 636 OF 2019)

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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 Bruno Chan (“Judge”) dated 13 January 2023[1] refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 26 February 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 July 2017 rejecting her non-refoulement claim.

2.  On 18 May 2023, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a national of Vietnam born in 1966.  She said she had entered Hong Kong illegally on 29 November 2015 via Mainland China, and surrendered to the Immigration Department on 2 December 2015.  She raised a non-refoulement claim on the same date on the basis that if she returned to Vietnam, she would be harmed or killed by a creditor, a person named Tai, for an outstanding debt.  The details of her claim are set out at [9] to [25] of the Board’s decision.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By a notice of decision dated 14 July 2017, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 22 October 2018, at which the applicant gave evidence and answered the Board’s questions.  In its decision dated 26 February 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [9] of his decision as follows:

“  9.  In its decision the Board found the Applicant’s evidence inconsistent and illogical regarding her inability to recall important details of her claim such as the amount spent on renovation of her shop and its rent, details of the attack by her creditor or the source of funds of her travel from Vietnam to Hong Kong that it doubted the credibility of her claimed fear for departing her home country for Hong Kong, that in any event that it was a private monetary dispute between her and her creditor without any official involvement that state/police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

The Judge’s decisions in the court below

6.  On 6 March 2019, 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 annexed the Board’s decision and deposed that if she returned to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor and his men because she could not repay the outstanding debt.

7.  The Judge, having considered the application on the basis of the documents alone as there was no request for an oral hearing, issued his decision on 13 January 2023, refusing to grant leave to apply for judicial review.  The reasons were set out at [11] – [14] of the Form CALL-1 as follows:

“ 11. 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 her 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.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if true 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.

13. 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.

14.  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.”

8.  The applicant did not appeal within the period of 14 days 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 1 February 2023 seeking an extension of time to appeal.  The application was dismissed in the Judge’s decision of 18 May 2023 on the ground that the applicant had failed to show any prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 24 May 2023, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  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 out of 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.  It was stated that due to the nationwide network of gangsters and their clandestine connections with the government and the police, it would be quite possible for the creditor to find out her new residence.  She also claimed that the Immigration Department did not consider her human rights.

10.  The applicant did not lodge any further written submissions in accordance with the directions of the Registrar of Civil Appeals dated 24 May 2023.  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

11.  In respect of the delay, as the Judge stated at [5] of his decision dated 18 May 2023, the applicant’s delay of five days is relatively insignificant and therefore, like the Judge, we shall also focus on the prospect of success of her intended appeal.

12.  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.  In the present case, the Board’s rejection of the centrepiece of the applicant’s claim that she was indebted to a creditor was based upon the Board’s careful consideration of the totality of her evidence.  This included several instances where she gave wholly unsatisfactory explanations, such as missing crucial details of the alleged loan and other evidence inconsistent with the story in her non-refoulement claim form.  The Board, as the primary decision-maker, was entitled to come to the conclusion for the detailed reasons given in its decision that the applicant had filed to establish the factual basis of her claim. 

13.  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 decision.  The applicant has failed to establish or even raise any such public law grounds. Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

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 advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons dated 24 May 2023 is accordingly dismissed.