NGUYEN THI LOAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 121/2023, [2024] HKCA 1153

On appeal from [2023] HKCFI 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 121 OF 2023

(ON APPEAL FROM HCAL NO 1368 OF 2022)

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J U D G M E N T

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

1.  On 11 April 2023, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Director of Immigration (“the Director”) refusing her request to make subsequent claim of non‑refoulement protection[1]. The applicant filed a Notice of Appeal against the judge’s decision on 25 April 2023.

2.  The applicant is a national of Vietnam. She entered Hong Kong illegally from Shenzhen with her husband and their two sons in October 2014. They surrendered to the police on 27 October 2014. She lodged a non-refoulement claim together with her family in November 2014 on the basis that, if refouled, they would be harmed by the creditors who are triad member and a police chief officer respectively.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 20 June 2016, the Director rejected the non-refoulement claims of the applicant and her family on torture risk[2], BOR 3 risk[3] and persecution risk[4].

4.  The applicant’s husband submitted a Notice of Appeal against the Director’s further decision to the Torture Claims Appeal Board (“the Board”) on 4 July 2016.

5.  On 11 November 2016, the Director invited the applicant and her family to submit additional facts which they consider relevant to their non-refoulement claims on all applicable grounds including BOR 2 risk,[5] in case they have omitted any relevant facts before. By a Notice of Further Decision dated 1 December 2016, the Director rejected their claims on all applicable grounds including on BOR 2 risk, in the absence of response from them to the said invitation.

6.  On 27 March 2017, the Board invited the applicant’s husband to attend an oral hearing of the appeal scheduled on 13 June 2017. This invitation prompted the applicant and her sons to lodge their appeals belatedly on 5 June 2017.

7.  The applicant attended the hearing of the appeal before the Board with her husband on 10 August 2017. The Board accepted that the applicant’s husband made an honest error not to include his family when he lodged his appeal so the Board allowed the late filing of the appeals of the applicant and her sons.

8.  The Board considered that the inconsistencies of the husband’s evidence concerning the calculation of the amount of the loan and his attempted explanation greatly undermined the credibility of the claim that he borrowed any money from his creditor. The applicant and her husband’s claim that the husband’s aquaculture business was destroyed by the largest typhoon in April 2013 was greatly undermined by the country of origin information which showed that no typhoon had struck Vietnam in April 2013. The Board found that the applicant and her family had fabricated their claims and rejected the appeal on 15 September 2017.

9.  The applicant and her two sons were repatriated to Vietnam on 11 July 2018. She entered Hong Kong illegally again in November 2021 and was arrested by the police on 25 November 2021.

10.  On 29 December 2021, the applicant sent a letter to the Immigration Department requesting to make a subsequent claim for non-refoulement protection. Her intended subsequent claim is based on her fear that the host of the gambling stall and the bet winner will harm or kill her as she had misappropriated some of the bets.

11.  By a Notice of Decision dated 25 March 2022, the Director refused the applicant’s request to make a subsequent claim. The Director did not accept there has been significant change of circumstances since the previous claim. Even if assuming there has been a significant change of circumstances, the Director decided that such change would not give the subsequent claim a realistic prospect of success.

The intended judicial review

12.  The applicant filed a Form 86 and an affirmation on 30 November 2022 to seek leave for judicial review against the Director’s refusal of her request for subsequent claim. She did not put forward any grounds for her intended challenge.

The judge’s decision

13.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request for an oral hearing. The judge held that there is no error of law, procedural unfairness or irrationality in the Director’s decision in refusing the applicant’s request to make a subsequent claim. As there is no realistic prospect of success in the applicant’s intended application for judicial review, the judge refused to grant extension of time and dismissed the leave application on 11 April 2023.

Grounds of appeal

14.  In the Notice of Appeal and affirmation filed on 25 April 2023, the applicant stated her grounds of appeal as follows:

(1)  If she returns to Vietnam, her life will be seriously threatened or she will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director and the Board “did not see the grounds” to reserve their decisions.

15.  The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 25 April 2023 requiring the applicant to lodge skeleton argument on or before 9 May 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, she shall be deemed to have abandoned her right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions by the prescribed time in this appeal.

Legal Principles

16.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

18.  The applicant’s grounds raised in this appeal had not been raised in her leave application at the court below. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

19.  In any event, the new grounds are just bare assertions without evidence in support. She failed to point out any error or unfairness in the judge’s decision. It has not been demonstrated the judge made any errors of law or failed to take into account relevant matters or was otherwise plainly wrong. There is no viable basis to reverse the judge’s decision.

20.  As this appeal is wholly without merit, we dismiss it accordingly.