RE NGUYEN THI LIEN

CAMP 355/2021

[2022] HKCA 1490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 355 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 824 OF 2018)

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J U D G M E N T

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

1.  On 28 July 2020, DHCJ C P Pang (“Judge Pang”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), 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.

2.  On 14 August 2020, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  However, she was not in fact late because time does not run during the summer vacation (1 – 31 August)  as specified in Order 3 rule 3 of the Rules of High Court (Cap.4A), also see [4] of Ndukwe Bartholomew Chukwuma [2021] HKCA 329 and [2] of Hasmi Rizwan Imran [2020] HKCA 794.  However, it was overlooked by the lower court and by the decision made by DHCJ Bruno Chan (“Judge Chan”)  on 17 August 2021, the application for extension of time was refused and summons was dismissed. 

3.  However, the time for appeal had expired when the applicant filed her summons in this court on 24 August 2021 (“the Summons”).  In the circumstances, this Court would still treat the present application as extension of time to appeal against the JR Decision, although of course we bear in mind the facts in the preceding paragraph.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 August 2021, the applicant should lodge her written submissions on or before 7 September 2021.  She failed to do so.  It was further directed that in the event the applicant failed to lodge her written submissions, she shall be deemed to have abandoned her right to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials. 

5.  Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 30 October 2015 and was arrested by the police on 12 December 2015.  She was transferred to the Immigration Department for investigation.  On 15 December 2015, she lodged a non-refoulement claim alleging that if refouled, she would be harmed or even killed by her creditor as she was unable to pay off her debts.  The factual background of this case was succinctly summarised by Judge Pang at [4] of the JR Decision ([2020] HKCFI 1626).

7.  By a Notice of Decision dated 16 June 2017, the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The Board decided to determine the appeal without a hearing.  By a decision dated 4 May 2018, the Board rejected the appeal/petition on all applicable grounds, confirming the Director’s decision. The Board found that on the applicant’s own evidence, the creditors only threatened the applicant verbally without inflicting any physical harm, which indicates that the creditor had no intention to really harm the applicant but only to exert pressure on her for repayment [46] – [50].  The applicant’s assertions that the police would not assist and protect her were only her own speculations [56].  Relevant country of origin information (“COI”)  showed that the Vietnamese government had taken steps to combat corruption, to reform the legal system and to improve the protection of human rights [38] - [45] and therefore, there is reasonable state protection.  In any event, internal relocation was viable and reasonable [64] – [68].  For the aforesaid reasons, the Board did not consider that the applicant would face any real risk of harm upon her return to Vietnam, and her non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 11 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision.  She did not provide any ground for relief and only exhibited the Director’s decision in her supporting affirmation. 

The JR Decision

10.  The applicant did not request an oral hearing and Judge Pang disposed of the application on paper.  The Judge had duly explained at [12] of the JR decision that as the Director’s decision was superseded by the Board’s decision and hence is not amenable to judicial review, the Judge treated the application as an application for leave to apply for judicial review of the Board’s decision.  After due consideration, the Judge refused leave for judicial review for reasons set out in [11] - [18] of the JR Decision:

“11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. 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.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.  As the Director’s decision has been superseded by the Board’s decision, the Director’s decision is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

13.  By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make.  Since then, she has made no response or submission to the Court.

14.  In the present case, the Board in fact found that on the accounts of primary facts claimed by the applicant, she would not face any real risk of harm, if refouled.  It further found that internal relocation was a viable option for her.

15.  As mentioned, assessment of evidence and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.

16.  The Board did not hold an oral hearing and it gave explanation for such decision.  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 (which the Board referred to).  While there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision in terms of its outcome and consequence, the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: per Cheung CJHC (as he then was)  in paragraph 26 of his judgment for the Court.

17.  The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in her affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with an immigration officer and the Board basically accepted the version of facts as advanced by the applicant before it came to conclusion, I do not find the course adopted by the Board to be irregular or unfair.

18.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them, nor any failure of them to apply high standards of fairness.”

Application for extension of time to appeal the JR Decision

11.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  As mentioned earlier, the applicant took out a summons for extension of time in the court below on 14 August 2020 instead of filing a notice of appeal due to the mistaken belief that the time for appealing had expired. 

12.  In those circumstances, we consider that there is a reasonable ground for the delay, but the court would still have to assess whether there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application, see Re Gurung Min Bahadur [2018] HKCA 226 at §10.

Discussion

13.  We do not consider there is any prospect of success of the intended appeal from the JR Decision.  

14.  In the affirmation filed on 24 August 2021, the applicant did not provide any grounds of appeal against the JR Decision.  She merely reiterated her case that the creditor had vandalized her home and assaulted her in Vietnam. She was scared and thus escaped to Hong Kong to save her life.

15.  It is clear from the Board’s decision that the applicant’s claim was private and personal in nature, and she had only received verbal threats from the creditor in an attempt to pressurize her to repay her debt.  That was her own case [28] – [31].  Hence, the Board did not consider that the creditor had any real intention to harm the applicant, and it did not accept that she would face any real risk of harm upon her return to Vietnam.  It was perfectly open on the evidence for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with Judge Pang, we do not see any in this case.

16.  We are satisfied that Judge Pang had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 24 August 2021.