BUI THI NHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2777/2018

[2024] HKCFI 2947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2777 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 25 July 2024 for extension of time to appeal the order of this Court dated 7 May 2021 (the “Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “leave application”).

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is more than two months out of time. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing 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. If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.

Length of delay and explanations for the delay

3.  The application for leave to appeal is three years, two month and four days out of time. The delay is very substantial. The Applicant had been given directions to file a statement or affirmation explaining her reasons for the delay, including the date and circumstances when she received the Order, all changes of her address since she filed the leave application; and the grounds of her intended appeal. She did not respond.

4.  In her supporting affirmation, the Applicant said that she failed to appeal within time as she had never received the Order. That is a bare assertion. The directions were designed to enable her to explain the date when and the circumstances under which she came to receive the Order or was informed of the outcome of her leave application. The Court noted in particular that the address she gave in her supporting affirmation for extension of time is not the same as the one stated in her Form 86. Hence, the Court gave specific directions that she discloses the dates and particulars of all changes of her address since she filed the leave application in December 2018. This Court has not overlooked the possibility that the Applicant might have moved and might not have received the Order and Form CALL-1. If that is the case, she only had herself to blame for neglecting to update the Court with her change of correspondence address and had to bear the consequence: see: Karamjit Singh[2] and Re hasmi Rizwan Imran[3]. Without these information, the Court cannot assess the length of the delay and the reasonableness of the explanation. However, as she did not respond, this Court could only come to the conclusion that she has no explanation for the very substantial delay.

Prospect of success of the intended appeal

5.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The Board’s decision is basically the product of its applying the law applicable to non-refoulement protection to the facts it found. In a judicial review, the court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. In the absence of any specific grounds challenging the Court’s decision in refusing leave, when deciding whether to grant extension of time to appeal, the court can only focus on the above vitiating elements in the Board’s decision and its own decision in refusing leave.

6.  The only grounds of the Applicant’s intended appeal as may be gleaned from her supporting affirmation are: (1) that she disagrees with the decision of this Court in refusing her leave application; (2) that this Court reached the decision unfairly in that she was not given an opportunity to clarify her case and situation in her country; and (3) that she is in fear of harm if returned to Vietnam.

7.  Under Ground (1), the Applicant said she is dissatisfied with the Court’s decision refusing her leave to apply for judicial review. Understandably, no applicant would be satisfied with the court’s decision refusing to grant him the relief he asked for. That is the Applicant’s sentiment and as such could not be an arguable ground of appeal, unless she could disclose some basis that the Court’s decision is wrong in law or on the facts. No such basis was disclosed.

8.  As for Ground (2), the Applicant complained that this Court reached the decision unfairly in that she was not given an opportunity to clarify her case and situation in her country. The Court’s decision was indeed made without an oral hearing, though it was mistakenly marked on Page 1 of the Form CALL-1 as a hearing in open court. Paragraph 3 of the Form CALL-1 unequivocally stated that the decision was made without an oral hearing. The decision not to hold an oral hearing was made pursuant to Order 52, rule 2(4) of the Rules of the High Court which provides that the judge may determine the leave application without a hearing, unless a hearing is requested in the Form 86. That decision was made, firstly, because the Applicant had not requested an oral hearing; and secondly, after the Court had reviewed the Board’s decision and all the papers, including the evidence and came to a view that the application may be justly determined without an oral hearing. The reasons are as follow.

9.  The ground of application for judicial review as advanced by the Applicant in her Form 86 was that she “will be faced a genuine and substantial risk of being subject to torture or even killed by the money lender”. She had not alleged any errors of law, procedural unfairness or irrationality in the Board’s decision. In effect, her application was a challenge of the Board’s finding of fact, which for reasons as explained in Paragraph 5 is not permissible in an application for judicial review. This Court did not for that reason only decide not to hold an oral hearing or to dismiss her leave application. It examined the Board’s decision rigorously with anxious scrutiny.

10.  As stated in Paragraph 16 of the Form CALL-1, the Board was not satisfied that the Applicant was a truthful witness because of the numerous inexplicable inconsistencies between her evidence at the oral hearing before the Board and her evidence in her non-refoulement claim form and her screening interview. It found the Applicant was making up story when she gave evidence in the hearing. It was therefore not satisfied that the Applicant had proved the existence of the loan which is the centre piece of her of fear and risk. These are findings of fact solely within the realm of the Board, which the Court may not interfere save for errors of law, procedural unfairness or irrationality in the decision. Having read all the papers, the Court could not detect any errors of law in the Board’s decision or find any suggestion of procedural unfairness in the making of the decision or irrationality in the decision. The Applicant had not pleaded any such vitiating elements either. It was only after having considered all these matters that the Court decided that an oral hearing would be futile in the light of the Applicant’s grounds of application.

11.  Ground (3) is likewise a challenge of the Board’s finding of fact which fails for the same reason as mentioned in the preceding paragraph.

12.  I had rigorously examined the decision of the Board, the papers and the evidence with anxious scrutiny and satisfied myself that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. I was satisfied that the Board’s decision had not been so vitiated. The Applicant has not made any specific challenges as to what was wrong with this Court’s decision in refusing her leave to apply for judicial review. Having carefully re-examined the Call-1 Form with anxious scrutiny, I affirmed that conclusion. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

13.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. The application is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. To allow such a challenge to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

14.  The delay is very substantial, the intended appeal has no prospect of success. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. For all these reasons, the application for extension of time to appeal is refused.