RE HOANG BICH NGOC

CAMP 304/2022

[2022] HKCA 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 304 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 739 OF 2021)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 17 September 2021[1] dismissing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written statement to support her application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 36.  She entered Hong Kong illegally and was arrested by the police on 9 May 2019.  She later raised a non-refoulement claim based on fear of being harmed or killed by her creditor and his followers, who have triad background, due to her inability to repay his debt.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

6.  By his decision dated 26 July 2019, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at a hearing held on 7 July 2020, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 5 January 2021, the Board dismissed the appeal.  The Board found there were serious inconsistencies and implausibility in the applicant’s evidence with regard to material aspects of her case, as set out in [36] of the Board’s decision.  The Board found the applicant’s evidence incredible and unreliable, and did not accept that she came to Hong Kong because her creditor had threatened to harm her or that she had suffered any serious physical or mental pain and suffering.  The Board further found that internal relocation alternatives were reasonably available to the applicant, which would reduce or negate any risk that she might face.  The Board did not accept that the applicant’s creditor and followers, if they ever were, would still be interested in locating her all over Vietnam.  The Board concluded that the claim failed on all applicable grounds.

8.  On 21 May 2021 the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not put forward any specific ground for seeking relief.     

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 17 September 2021, the Judge refused to give leave to apply for judicial review as he found the applicant’s intended judicial review had no reasonable prospect of success.  He gave his reasons at [16] to [20] as follows:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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 the decision of the Board.

19. The applicant’s reason in her affirmation does not assist her application.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

10.  The Form CALL-1 was initially mailed to the applicant at Castle Peak Bay Immigration Centre, which was the address stated in the Form 86 and accompanying affirmation.  It was returned undelivered as the applicant had been released on her own recognizance.  The Form CALL-1 was re-sent to the applicant at the address provided by her to the immigration Department on 30 September 2021.  It has not been returned by the post office.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  In the applicant’s case, the 14 days would run from 30 September 2021, and expire on 15 October 2021.

12.  By a summons filed on 18 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 22 June 2022[6], he dismissed the application. 

13.  On 18 August 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

14.  In considering whether to extend time for appealing against the refusal of 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. 

15.  The applicant was more than seven months late when she made the time extension application.  This is a serious delay.  In the written statement in support of the present application, the applicant stated that she had not received the Judge’s decision, and as she does not understand English, she does not understand the Court’s letter and needs her friend’s help to read the letter and file the application.  We note that the applicant’s address as stated in her summons applying for extension of time in the court below and in the present summons, is different from the address she provided to the Immigration Department.  In view of this, we accept it is possible that the applicant did not receive the Form CALL-1.  However, it is her duty to update the Court of changes in her address.  In the circumstances, we are not satisfied that the applicant has satisfactorily explained her serious delay.  This being the case, the applicant will have to show that the intended appeal has a real prospect of success.    

16.  In assessing the merits of the intended appeal, we 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].

17.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the affirmation in support of the present application, the applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify her case and the situation in her country.  She also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time. 

19.  The applicant stated in the written statement that her oral evidence to the Director and the Board was true but it was not accepted.  She complained that the Director and the Board did not investigate or take steps to verify her claim, and they lacked objectivity when assessing her claim.  It was said that it was impossible for her to gather evidence since he was up against the entire State regime.  She further complained that the Director did not consider her human rights under the Basic Law and various international covenants.             

20.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  It is the duty of an applicant to set out in the Form 86 the grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and her Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing.   

(2)  As to the complaints made against the Board in the written statement, they are general assertions not supported by any particulars.  In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the applicant’s evidence incredible and unreliable, and that her claim did not satisfy the requirements for granting non-refoulement protection. The applicant has not pinpointed any specific error in the Board’s findings and conclusion.     

(3)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

21.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.           

22.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal the Judge’s decision.  Accordingly, we dismiss the applicant’s summons filed on 18 August 2022. 

[1] [2021] HKCFI 2603

[2] 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.

[3] This refers to the 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.

[4] 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.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2022] HKCFI 1673