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CAMP 332/2023, [2024] HKCA 110
On An Intended Appeal From [2023] HKCFI 997 &
[2023] HKCFI 2231
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 332 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 1089 OF 2021)
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BETWEEN
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DANG VAN DE |
1st Applicant |
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PHAM THI HUYEN |
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
________________________
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Hon Au and Chow JJA in Court |
| Date of Judgment: |
8 February 2024 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 25 October 2023, the 1st Applicant took out a summons to apply for leave, or an extension of time, to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 5 September 2023 refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 17 April 2023 (“the Order”) refusing to grant leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 23 July 2021, whereby the Board dismissed the 1st and 2nd Applicants’ appeals against two decisions of the Director of Immigration (“the Director”) dated 19 January 2021 rejecting their respective non-refoulement claims.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
4. The Applicants, husband and wife, are nationals of Vietnam. They were arrested on 25 May 2020 for having entered Hong Kong illegally. Subsequently, they raised non-refoulement claims on the basis that they would be harmed or killed by a creditor upon their return to Vietnam because of their inability to repay a loan. Details of the Applicants’ claims have been summarised by the Judge at §§4-11 of the CALL-1 Form ([2023] HKCFI 997).
5. By two Notices of Decision dated 19 January 2021, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).
6. The Applicants appealed the Director’s Decisions to the Board. On 23 July 2021, the Board dismissed the Applicants’ appeals, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-15 of the CALL-1 Form:
“[12] The Applicants testified before the Board. The Board found them incredible and rejected their account as untruthful. The Board noted a serious inconsistency in the Applicants’ evidence about their offer of partial payment. The 1st Applicant told the Board that he raised VND 100 million from his parents to offer to the Moneylender as part payment in exchange for extension of time to repay, but the Moneylender refused but did not take the money which was then returned to his parents. However, the 2nd Applicant told the Board that the Moneylender took the money but refused to give them extension of time. The Board noted the absence of objective evidence in support of the loan and shrimp business. It did not accept the Applicants were indebted to the Moneylender or that they had operated the shrimp business.
[13] The 1st Applicant claimed to have been chopped on the shoulder and the 2nd Applicant to have been hit on the head and rendered unconscious necessitating a week’s hospitalisation. The Board found there was no objective or reliable evidence to substantiate the Applicants’ account of being assaulted on the last two occasions of the Moneylender’s visits. It did not accept the Applicants’ evidence that they had been assaulted by the Moneylender.
[14] The Applicants asserted that the Moneylender had extensive network to locate them anywhere in Vietnam and that they could not obtain police protection because of police corruption. The Board found their first assertion as speculative and their second assertion unsupported by authoritative and credible country of origin information (‘COI’). While police corruption is a problem in Vietnam, the COI show that the Vietnamese government has taken steps to combat corruption and illegal debt collecting activities and there are avenues for complaint against police inaction. The Board found that sufficient state protection is available. In addition, having regard to their age, education background and experience, the Board found it not unduly harsh for the Applicants to relocate to other areas in Vietnam, such as Ho Chi Minh City or Hanoi to avoid the risk of harm, if it becomes real.
[15] Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found the Applicants had failed to establish their claim for protection under any of the applicable grounds. Hence, it dismissed their appeal.”
7. On 2 August 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In the 2nd Applicant’s supporting affirmation of the same date, she merely repeated the factual basis of the Applicants’ non-refoulement claims.
THE JUDGE’S DECISION
8. On 24 November 2022, the 2nd Applicant filed an affirmation to withdraw her application for leave to apply for judicial review on the ground that she could return to Vietnam safely.
9. On 17 April 2023, the Judge refused to grant the 1st Applicant leave to apply for judicial review, and granted leave to the 2nd Applicant to withdraw her application, for the following reasons:
“Grounds for judicial review
[17] The Applicants did not advance any grounds for judicial review in the Form 86. In the 2nd Applicant’s affirmation filed in support of their leave application, she said that she merely repeated their case of fear of harm from the Moneylender. In effect, the Applicants are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk of harm if returned to Vietnam. For reasons as explained above, that is a finding of fact solely for the Board which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. In the absence of specific or proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Conclusion
[18] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board rejected the centrepiece of the Applicants’ claim that they had raised a loan from the Moneylender and were in genuine fear that they will be harmed by the Moneylender because of their inability to repay. It was on that basis that the Board found they had failed to prove the factual basis to support of their claim for non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
[19] The 2nd Applicant had filed an affirmation on 24 November 2022 seeking to withdraw, in respect of herself only, her leave application. She confirmed that she fully understood the consequences of her withdrawal and that she could return to Vietnam safely. The Court is satisfied that she made the application out of her free will. That application to withdraw having been made before this determination, the Court respects her wish and allows her application to withdraw from this leave application.”
10. On 20 July 2023, the 1st Applicant applied by summons for an extension of time to appeal against the Order. On 5 September 2023, the Judge refused the 1st Applicant’s application, holding that there was no reasonable explanation for his delay, and he had advanced no arguable grounds of appeal.
THIS APPLICATION
11. By a summons taken out on 25 October 2023 in the Court of Appeal, the 1st Applicant applied for leave, or an extension of time, to appeal against the Judge’s order of 5 September 2023. In the summons and his supporting affirmation, the 1st Applicant alleged that his present detention was unlawful and he was suffering physically and mentally. Attached to the 1st Applicant’s affirmation is a 2-page letter written in Vietnamese with no translation. We have obtained a court translation of the letter. In it, the 1st Applicant sets out some factual background pertaining to his case. He says that because he had a relationship conflict with his wife, she left on her own accord. He became very sad, and was mentally collapsed and mentally unstable. Thus, he did not get home in time to receive letters from the court. He asks the Hong Kong Government to allow him to take refuge here for a longer period of time until his family helps him pay off his debt and his life is stabilized. After that, he will request the Hong Kong Government to allow him to return to reunite with his family.
12. The 1st Applicant has failed to lodge any written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals dated 25 October 2023.
DISCUSSION
13. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we will treat the present application as a renewed application for extension of time to appeal against the Order.
14. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
15. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
17. Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.
18. The 1st Applicant has failed to identify any error in the Judge’s decision of 17 April 2023, or raise any viable ground of appeal against the Order.
19. There is no prospect of success in the 1st Applicant’s intended appeal. It is thus futile to grant the 1st Applicant any extension of time to appeal against the Order.
DISPOSITION
20. The application for extension of time to appeal is refused, and the 1st Applicant’s summons taken out on 25 October 2023 is dismissed.
(Thomas Au)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The 1st Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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.
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