TRAN THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 389/2022, [2024] HKCA 292

On Appeal From [2022] HKCFI 1802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 389 OF 2022

(ON APPEAL FROM HCAL NO 13 OF 2022)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 16 September 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 21 October 2020.  In that decision, the Board acceded to the applicant’s withdrawal of her appeal to the Board against the decision of the Director of Immigration (“Director”) dated 27 November 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Vietnamese national born in 1998.  She claimed to have left Vietnam on 26 June 2019 and subsequently entered Hong Kong illegally through Mainland China.  The applicant was arrested by police for illegal entry on 4 September 2019.  On 9 September 2019, she submitted a written signification indicating her intention to lodge a non-refoulement claim.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her failure to repay a loan.  The factual background of the applicant’s claim was set out at [6.1] to [6.25] of the Director’s decision.

3.  By notice of decision dated 27 November 2019, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision on 5 December 2019.  By letter dated 15 October 2020, however, the applicant requested to withdraw her appeal/petition against the Director’s decision.  After consideration of the content of her letter, the Board was satisfied that the applicant’s request to withdraw her appeal was freely sought and that she understood the consequences of the withdrawal.  The Board was also satisfied that there was good reason for the withdrawal, namely that the applicant considered it safe for her to return to Vietnam.

5.  Therefore, on 21 October 2020, the Board acceded to the applicant’s withdrawal of her appeal and directed that the Director’s decision of 27 November 2019 was confirmed.

The Judge’s decisions in the court below

6.  Notwithstanding her own withdrawal of the appeal, on 6 January 2022, long after the expiry of the 3-month time limit for judicial review prescribed in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her supporting affirmation, the applicant simply stated that she wanted to apply for judicial review against the decision for her non-refoulement claim.

7.  The Judge issued directions to the applicant by letter dated 30 June 2022 to file a statement to explain the delay in making her leave application, the date and circumstances when the decision was received or came to her notice, and her grounds of the proposed judicial review.  As at the date of the Judge’s decision handed down on 16 September 2022, the applicant did not reply.  The Judge issued his decision in writing, refusing to grant extension of time to apply for leave for judicial review and refusing leave to apply for judicial review.  The reasons were set out at [7] to [9] of the Form CALL-1 as follows:

“ Length of and explanation for delay

7. The leave application was filed eleven and half months out of time. In the context of a three months’ period for making the application, it is inordinate. Despite directions having been given to her to file a statement explaining the reasons for the delay, she did not respond. The letter containing the directions was sent to her last known address provided by the Immigration Department after her discharge from the Castle Peak Bay Immigration Centre where she was detained at the time she made the leave application. The delivery service of Hong Kong Post is usually very reliable. The letter has not been returned through the course of mail. There is nothing to suggest that she has not received the letter. She is deemed to have waived her right to provide the information in support of her applications.

Merits of intended judicial review

8. The Applicant did not advance any ground of application in her Summons or affirmation. Despite the Court’s specific request for her grounds of judicial review, she did not respond. It is inexplicable why she wished to review the Board's Decision granting her what she applied for and why it took her fourteen months to make up her mind to seek leave to apply for judicial review of that Decision. Without even knowing what her grounds are, it is difficult to assess the prospect of success of her intended judicial review. The role of the court in judicial review is not to make the decision 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. In a judicial review, the court will 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[6]; Re Md Shohel Sheak[7];and Re Limbu Birkhaman[8]. In the absence of any specific grounds challenging the propriety of the Board’s Decision, the Court can only focus on the above vitiating elements in the Decision.

9.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had properly directed its mind to the law and key legal principles relating to withdrawal of applications; that the application to withdraw was voluntarily made out of the Applicant’s free will; and that she understood the consequences of the withdrawal.  The Court was satisfied that in allowing her application to withdrawal, the Board had made no error of law, had observed a very high standard of fairness and had exercised its jurisdiction with propriety.  On the materials available, the Applicant’s intended judicial review has no prospect of success at all.”

Appeal to this Court

8.  On 26 September 2022, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were her claims for non-refoulement.  In her supporting affirmation, she stated that there was a good ground of appeal not considered, but she did not provide any details or particulars.

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.  

10.  The applicant has not lodged any written submissions. 

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.  The only option left to a claimant who has validly withdrawn his or her appeal is to make a fresh non-refoulement claim under section 37ZO(2) of the Immigration Ordinance (Cap 115) if the requirements of that section are met.

13.  In the present case, the applicant has not contested the validity of the withdrawal of her appeal and the Board’s acceptance of her withdrawal.  In her affirmation in support of her Form 86, she did not even explain why she now did not wish to withdraw her appeal.  In the circumstances, she has not provided any basis for invalidating the withdrawal of her appeal.

14.  Nor has the applicant identified any viable ground of appeal against the Judge’s decision.

15.  For these reasons, there are no grounds to interfere with the Judge’s decision.  Accordingly, the applicant’s appeal is dismissed.