DUONG THI BE v. TORTURE CLAIMS APPEAL BOARD

CAMP 342/2021

[2022] HKCA 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 342 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1101 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 27 April 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.  On 22 July 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal^[2].

3.  On 16 August 2021, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order made by DHCJ Bruno Chan dated 22 July 2021.  In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Bruno Chan dated 27 April 2021.

4.  The applicant is a national of Vietnam.  She is 50 years old.  She illegally arrived in Hong Kong on 13 April 2015 and surrendered to the Immigration Department on 27 April 2015.  She lodged her non-refoulement claim together with her adult son on the basis that they would be harmed or killed by debt collectors for failing to repay her loan.

5.  By a Notice of Decision dated 21 April 2017, the Director rejected the claims of the applicant and her son on all then applicable grounds including torture risk^[3], BOR 3 risk^[4], BOR 2 risk^[5] and persecution risk^[6].

6.  The applicant and her son appealed against the Director’s Notice of Decision to the Board and the appeal was dealt with on paper.  The Board did not take issue with the credibility of their claim of threats from creditors.  However, the Board found that as there was no evidence of state or official involvement, it was reasonable for the applicant and her son to relocate to another region in Vietnam without risk from creditors. Therefore, the claims of the applicant and her son for non-refoulement failed and their appeal was dismissed on 10 January 2018.

The judge’s decision

7.  On 14 June 2018, the applicant applied for herself only for leave to bring judicial review against the decision of the Board.  She did not provide any grounds for seeking relief and in her supporting affirmation, she simply repeated she did not wish to return to Vietnam for fear of her creditors.  As she did not request for an oral hearing, DHCJ Bruno Chan considered the application on paper. 

8.  As the applicant was late for more than 2 months, the judge considered this delay was significant and noted that no reason had been put forward by the applicant for the delay.  As for the merits, the judge held that there was nothing to show the Board had committed any error in the application of law, made irrational findings, or that there was procedural unfairness in coming to its conclusions.  The judge agreed with the Board that it is not unreasonable or unsafe for the applicant to relocate to other parts of Vietnam and there is no justification to afford her with non-refoulement status.  Thus, the judge found that the intended judicial review has no reasonable prospect of success and in the absence of any good reason for the delay, the applicant’s leave application was dismissed on 27 April 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in her summons or in her supporting affirmation.  She deposed that she did not receive the relevant court document within time as her letterbox was broken and her neighbours’ children took the letter from her letterbox by mistake.  Further, she is unable to understand English, Chinese, or Cantonese. These explanations are basically a repetition of the contents from her affirmation in the court below.  In her written submissions, the applicant complained again she would be harmed or killed if she is to return to Vietnam due to her creditors.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of 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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 27 April 2021.  The applicant took out a summons in the court below on 21 May 2021.  She was late for 11 days.

12.  As the delay was not substantial, we will focus on the merits of the intended appeal.

13.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant’s written submissions are simply bare assertions and does not contain any arguable challenge against the decision of the judge.  The judge has duly considered the applicant’s complaints against the Board and given detailed explanation in the judgment on 27 April 2021 for rejecting the application to seek leave to bring judicial review out of time.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 27 April 2021 and dismiss the summons filed on 16 August 2021. 

[1]  [2021] HKCFI 1178

[2]  [2021] HKCFI 2095

[3]  As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]  This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.