RE BUI THI LIEN

CAMP 519/2021

[2022] HKCA 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 519 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1216 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 1 February 2021[1] refusing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission to support her application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Vietnam aged 62. She was arrested by the police in August 2013 for entering Hong Kong illegally and was repatriated to Vietnam on 17 September 2013. On 11 December 2013, she surrendered to the Immigration Department and admitted to having entered Hong Kong on 30 October 2013. She later raised a non-refoulement claim.

6.  The applicant’s claim is based on her fear of being harmed or killed by her several creditors and their followers due to her inability to repay her loans. The details of the applicant’s claim were set out in the decision of the Director at [8] to [21]. We will not repeat them.

7.  By his decision dated 10 March 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

8.  The applicant appealed the Director’s decision to the Board. A hearing was held on 12 February 2018 during which she gave evidence and answered questions from the Board. By its decision dated 15 June 2018, the Board dismissed the appeal. While the Board was prepared to accept that the applicant may have defaulted on a loan and received threats when she failed to repay, the Board noted that the creditors were fellow villagers, not moneylenders, and the applicant was not harmed before she left the village and her family members continue to live there with no apparent problem after she left. The Board found the risk of harm to the applicant to be very low, and will further be reduced or negated by the availability of police assistance and internal relocation options. The Board concluded that the claim failed on all applicable grounds.

9.  On 28 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. She did not put forward any grounds for seeking relief. She merely stated in her affirmation that her creditors and their people could inflict serious harm or kill her if they want to and she would be in danger upon return to Vietnam.

10.  The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [13] to [17] of the Form CALL-1 as follows:

“13. In the present case, the Board fairly did not take issue with the applicant’s asserted primary facts. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of police protection and viability of internal relocation.

14. As mentioned above assessment of evidence, the risk of harm and availability of state protection and internal relocation are primarily 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.

15. The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a repetition of her claimed fear. There is no reasonably arguable basis to challenge the findings of the Board.

16. Indeed, the applicant’s claim is unconvincing. Even on her own account, the alleged past ill-treatment was of low intensity and frequency indicative of no real risk of serious harm. It came nowhere near the level of severity required by law for the claimed protection. The decisions of the Director and the Board decision are wholly reasonable.

17. 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 their decisions. Nor do I see any failure on their part to apply high standards of fairness.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

12.  By a summons filed on 31 August 2021, the applicant applied for an extension of time to appeal the Judge’s decision. Deputy High Court Judge Suffiad dealt with the application on paper, and by his decision handed down on 26 October 2021 refused the application.

13.  On 16 November 2021, the applicant filed the present summons to appeal against Deputy High Court Judge Suffiad’s decision. This is not a correct step to take. The proper procedure is to make a further application to this Court for extension of time to appeal the Judge’s decision of 1 February 2021. We will treat the summons as a renewed application to extend the time to appeal against the Judge’s dismissal of her application for leave to apply for judicial review.

14.  In considering whether to extend time for appealing against the refusal of 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.

15.  The applicant was more than six months late when she made the application for extension of time on 31 August 2021. She explained this was because she had a fall and had difficulty in walking. We do not find the explanation entirely satisfactory as she has not provided details or medical evidence about her injury and it was a long delay. Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

16.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the affirmation in support of the present application, the applicant stated that: “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”

19.  The applicant’s written submission gives an outline of her claim and the procedural history. Under the “Submission” section, it quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[6] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness. It is said that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility. It also complains that the Director did not consider the applicant’s human rights under the Basic Law and various international covenants. Finally, it says that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, her life will be in danger as she has not yet agreed a repayment plan with the creditors.

20.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1) What was stated in the applicant’s affirmation are bare assertions with no elaboration on the specific grounds of appeal that the applicant seeks to put forward. As such, they do not amount to proper grounds of appeal.

(2) The Board had accepted the primary facts underlying the applicant’s claim. The applicant’s complaint that the Board did not fairly or properly assess her credibility is therefore misplaced.

(3) In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection. The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written submission cannot amount to arguable ground of appeal.

(4) As to the complaint about the Director’s decision, as the Judge correctly pointed out in Form CALL-1 at [12], as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.

21.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal.

23.  For the above reasons, we dismiss the applicant’s summons filed on 16 November 2021.