DO NGOC THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 204/2023, [2024] HKCA 300

On An Intended Appeal From [2022] HKCFI 1354 &

[2022] HKCFI 2742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 204 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 73 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 1 June 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 9 September 2022 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 12 May 2022 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 January 2022, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 October 2021 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 1A, Rule 4 and Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam. He claimed to have entered Hong Kong illegally on 16 January 2020, and was arrested by the police on 1 February 2020. Shortly afterwards, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a moneylender for his failure to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§3-13 of the CALL-1 Form ([2022] HKCFI 1354).

5.  By a Notice of Decision dated 12 October 2021, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds, namely, risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 10 January 2022, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§14-20 of the CALL-1 Form:

“[14] The Board accepted the Applicant’s story as internally consistent with his claim that he was pursued by his moneylender for his failure to repay the loan and assessed his claim for non-refoulement protection on the basis of the case as he asserted.

[15] The Board found that the Applicant’s feared harm arose from a private monetary dispute with his moneylender and did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. That was sufficient to dispose of the Applicant’s claim under Persecution Risk ground.

[16] To deal with the Applicant’s complaint that he could not obtain police protection against the moneylender because his case involved gang members, the Board researched extensively into the Country of Origin Information (‘COI’). The Board noted that the Vietnamese police is corrupt and threats and violence associated with money lending and debt collection activities is prevalent in Vietnam. It also noted the government’s effort in fighting corruption and violence arising from illegal money lending activities. On balance, the Board was satisfied that state protection of an adequate standard is available to the Applicant should he seek police protection.

[17] At the hearing, the Applicant clarified to the Board that the police officers said that they could not help him because he demanded 24-hour body guard protection from the police. It is well settled that the primary duty of the home state is to establish and to operate a system of protection against persecution of its own nationals. The standard to be applied is not one which would eliminate all risk as to amount on a guarantee of protection in the home state, but a practical standard which takes proper account of the duty which the state owes to all its own nationals: see Horvath v Secretary of State for the Home Department. The Applicant’s demand for round the clock protection is a demand for a standard much higher than the practical standard. Refusal by the Vietnamese police to provide that standard does not mean he was denied state protection.

[18] In respect of his claim under BOR 2 Risk ground, it is not the Applicant’s case that a sentence of death will be imposed on him on his return to Vietnam. The Board also found the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2(1) will be violated if he is refouled to Vietnam. Accordingly, the Board rejected his claim under BOR 2 Risk ground.

[19] As for his claim under BOR 3 Risk ground, it is the Applicant’s case that he suffered minor injuries which he recovered in a week. Such injuries could not meet the high threshold of proof required under this ground. Accordingly, the Board held that the Applicant would face no genuine and substantial risk of being subjected to ill-treatment, if refouled.

[20] To succeed under the Torture Risk ground, the Applicant has to prove that he suffered torture within the meaning of section 37U(1) of the Immigration Ordinance. In essence, the ill-treatment he received must attain a minimum level of severity, for purposes stated in the section and inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. For the same reasons as given in the preceding paragraph, the minor injuries suffered by the Applicant could not attain a minimum level of severity required to support a claim under this ground. There is no evidence of active or passive state acquiescence in the moneylender’s ill-treatment of the Applicant. There is no evidence that the Applicant was targeted by or of interest to the Vietnamese government or that the moneylender was acting under the instruction of certain government officials. There is also no report or evidence that the Vietnamese government would fail to discharge its duty of protecting its citizens or would tolerate any unlawful and allusive behaviour by an individual, government official or member of any political party as a systemic practice. Indeed, the COI shows the government’s effort in eliminating illegal moneylending activities and the violence associated to such activities. Accordingly, the Board dismissed the Applicant’s claim under this ground.”

7.  On 20 January 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of relief was given in the Form 86. In his affirmation filed in support of the leave application, the Applicant said that he did not agree with the Board’s Decision, and he could not return to Vietnam because his life would be bad over there.

THE JUDGE’S DECISION

8.  On 12 May 2022, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[22] The Applicant did not state any ground in support of his application for judicial review. In his supporting affirmation, he said he disagrees with the Decision, he could not return to Vietnam and his life will be in danger. The essence of his complaint is that he disagrees with the finding of the Board that it is safe for him to return to Vietnam. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Vietnam and that state protection is available to prevent or reduce the risk. In effect, he is seeking to appeal the Decision or the Board’s finding of fact under the guise of judicial review. In the absence of specific grounds of application, the Court 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.

[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; and observed a very high standard of fairness. On his evidence, the Board found that his fear of reprisal not well-founded. It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of state protection. The Court could detect no error in law or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively 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 Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

9.  On 13 June 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 9 September 2022, the Judge refused the Applicant’s application, holding, inter alia, that there was no valid explanation for his delay, and the Applicant’s intended appeal had no prospect of success.

THIS APPLICATION

10.  By a summons taken out on 1 June 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Judge’s order of 9 September 2022. In his affirmation filed in support of the application, the Applicant states that he does not have any access to legal advice, and understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

11.  The Applicant has failed to lodge written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals dated 1 June 2023.

DISCUSSION

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

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

17.  The Applicant has failed to identify any error in the Judge’s decision of 12 May 2022, or raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 1 June 2023 is dismissed.