RE PHUNG THI SEN

CACV 318/2021

[2022] HKCA 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 318 OF 2021

(ON APPEAL FROM HCAL NO. 1314 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant extension of time to the applicant to apply for leave to apply for judicial review and dismissed her application for leave to apply for judicial review.  The intended challenge is against the decision of the Torture Claims Appeal Board (‘the Board’)  on 17 November 2017.

2.  Despite the directions of the Registrar of Civil Appeals of 21 June 2021 from the High Court to the applicant, the applicant failed to lodge the skeleton argument by the stipulated time.  The applicant has consented to the appeal to be disposed of on paper without an oral hearing and, accordingly, we will deal with this application on paper.

2)  Background

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally and was arrested.  She shortly raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by two moneylenders and that she would be liable to legal proceedings from ex-employees of her business.

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL-1 Form.

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 17 June 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

6.  The Director decided against the applicant’s right to life claim on 18 August 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decisions to the Board.  After a hearing held on 1 September 2017, the Board dismissed the applicant’s appeal against the Director’s decisions on 17 November 2017.

8.  The Board held that there were a number of aspects of the applicant’s claims and evidence which were confused and contradictory and difficult to understand.  This caused the Board to have serious concern about her general credibility and the reliability of her evidence.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

9.  The applicant filed a Form 86 out of time for over four months with supporting affirmation before the Judge.

10.  The Judge assessed the applicant’s documents and held that there was no good and valid reason for the serious delay in making her application for leave for judicial review.  As for the merits, the applicant failed to put forward any proper grounds for the intended challenge.  There was no error of law to be found on the Board’s decision.

6)  Grounds of appeal

11.  The applicant stated in her notice of appeal that she cannot return to Vietnam because she will face the risk of being killed or tortured by her creditor and gangsters.

12.  She further stated in her supporting affirmation that ‘there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review’.  And ‘[the Director] and [the Board] did not see [the] grounds to reverse their decisions’. She asked the Court to exercise its discretion to allow her appeal.

7)  Our view

13.  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

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

14.  In our view, there are no merits in the applicant’s appeal. Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground of appeal.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.