LE THI DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 224/2023, [2023] HKCA 1092

On Appeal From [2023] HKCFI 344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 224 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 81 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 K W Lung (“Judge”) dated 21 February 2023[1] refusing to grant leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 6 November 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 March 2017 rejecting her non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1982. She had overstayed as a visitor in Hong Kong in 2002 and was repatriated to Vietnam in 2005. She entered Hong Kong illegally in 2009 and was repatriated again to Vietnam in 2010. According to her, she last entered Hong Kong illegally on 17 January 2015. Shortly thereafter, she surrendered to the Immigration Department on 22 January 2015 and lodged a non-refoulement claim on the same date on the basis that she would be harmed or killed by her husband (Nguyen Duc Thanh) if she was refouled to Vietnam.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 28 March 2017, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 8 August 2018, at which the applicant gave evidence and answered questions from the Board. In its decision dated 6 November 2018, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [9] to [11] of the Form CALL-1:

“ 9. The Board recapped the applicant’s claim and personal background [4]-[26]. It also considered the country of origin information (“COI”) [28]-[44] and the laws governing the non-refoulement claim [52]-[69]. Having considered the applicant’s evidence, the Board found that her accounts were not truthful [79]. Firstly, the Board noticed that the applicant claimed to have family financial difficulty in 2007 and thus it was inconceivable that her husband could obtain the money to spend on gambling and prostitutes [80]-[86]. Second, despite the claimed assaults which lasted for 8 years, she never reported the ill-treatments to the police nor did she seek protection when she first arrived in Hong Kong. Meanwhile, her claimed injuries were inconsistent with the medical treatments she subsequently received [88]-[93]. Third, she failed to seek protection in China nor did she seek protection in the first available opportunity in Hong Kong [94]-[97]. Fourth, her husband was not a state agent. Nor was there any evidence of state involvement [98]-[102]. When these materials aspects were inquired by the Board during the hearing, the applicant was unable to provide satisfactory clarifications or explanations [103]-[122].

10. As a result, the Board concluded that the applicant was not a credible witness [123]-[128]. Further, the Board found that the country of origin information supported a finding of availability of state protection [129]-[143]. In any event, internal relocation was an available alternative [176]-[186].

11. In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.”

The Judge’s decisions in the court below

5.  On 9 January 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 supporting affirmation, the applicant simply repeated her fear of returning to Vietnam due to the risk of harm she would face from her husband and annexed the Board’s decision.

6.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 21 February 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [14] to [19] of the Form CALL-1 as follows:

“14. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16. 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.’

17. The grounds in paragraph 13 above are her bare assertions or speculation. The Board had rejected her factual evidence. There is no valid ground to challenge the Board’s Decision.

18. The Court therefore 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.

19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

7.  The applicant filed a summons on 8 March 2023 with a supporting affirmation essentially to apply for extension of time to appeal against the Judge’s decision. Taking the view that the deadline for appeal under Order 53 rule 3(4) of the Rules of High Court (Cap 4A) fell on 8 March 2023, the Judge granted leave to the applicant to file her notice of appeal within 7 days from 27 April 2023.[6] However, she failed to do so. Instead she filed a summons and affirmation later on 11 May 2023 to apply for leave to appeal out of time. The application was determined by the Judge on paper, and was dismissed in his decision of 6 June 2023 on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.[7]

The renewed application before this Court

8.  By summons filed in this court on 13 June 2023, the applicant made an application to “appeal out of time the order dated 6 June 2023 the dismissing the Appellant leave to apply for Judicial Review”. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 21 February 2023 refusing leave for judicial review.

9.  In the applicant’s 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 her husband is cruel and violent. She further contended that he will disregard the law and be willing to kill the applicant out of his 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. Lastly, she claimed that the Immigration Department did not consider her human rights.

10.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 13 June 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.  The applicant was late for one week when she filed her summons on 11 May 2023. While this is not a very lengthy delay, the applicant failed to provide any explanation at all. Nevertheless, we are prepared to focus on the merits of her intended appeal.

12.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board heard the applicant and assessed her evidence, before concluding that her entire claim was a fabrication. It gave extensive reasons (spanning some eight pages) in rejecting the applicant’s evidence, referring to numerous inconsistencies between her non-refoulement claim form submitted to the Director and her oral evidence given at the hearing before the Board. There was also the applicant’s own conduct which cast doubt on her credibility, such as avoiding to answer the Board’s question when asked about her husband’s alleged assault on her, which was a centrepiece of her non-refoulement claim. These are factual findings that are within the province of the Board as the primary decision-maker. The court has no power to interfere with them unless they are vitiated by public law errors. But the applicant has failed to make out or even identify any such defect in the Board’s decision.

14.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 13 June 2023 is accordingly dismissed.