BUI THI NHI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 220/2024, [2025] HKCA 172

On An Intended Appeal From [2021] HKCFI 1303 &

[2024] HKCFI 2947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 220 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 2777 OF 2018)

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JUDGMENT

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

1.  On 11 November 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 7 May 2021 (“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 29 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 November 2016.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Vietnam.  She claimed to have entered Hong Kong illegally on 24 May 2015.  She surrendered herself to the Immigration Department on 26 May 2015, and lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor (Hoang Trung Hieu) for being unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§4-15 of the CALL-1 Form ([2021] HKCFI 1303).

5.  By a Notice of Decision dated 23 November 2016, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 29 November 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§16-18 of the CALL-1 Form, as follows:

“[16] The Board reminded itself that the Applicant bore the burden of proving her fear and risk, but the standard was a relatively low one. It reminded itself that it was not always necessary to be absolutely persuaded that the Applicant’s assertions were certainly or even probably true. However, the Board was not satisfied that the Applicant was a truthful witness because of the numerous inexplicable inconsistencies between her evidence at the oral hearing before the Board and her evidence in her non-refoulement claim form and her screening interview. The Board found the Applicant was making up story when she gave evidence in the hearing. The Board was not satisfied that the Applicant had proved the existence of the loan which is the centrepiece of her case of fear and risk.

[17] The Board also considered Country of Origin Information (‘COI’) based on credible sources, including the US Department of State: Country Reports on Human Right Practices of Vietnam 2017 published by the Bureau of Democracy, Human Rights and Labor, US Department of State; the UK Home Office: Country of Origin Information Report – Vietnam published by the United Kingdom Border Agency Home Office and some news reports. From these COI, the Board was satisfied that despite the general situation of corruption in Vietnam, the government was committed to fighting corruption, improving police professionalism and capabilities, especially investigative capabilities, combating illegal money lending activities and improving protection to its citizens. The Board was satisfied that state protection of a reasonable standard is available to Vietnamese citizens to prevent the risks.

[18]  Essentially because of the Applicant’s failure in proving the loan, her fear and risks and because of availability of state protection, the Board held that the Applicant has failed to substantiate her claims under all the four applicable grounds.”

7.  On 6 December 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In her supporting affirmation filed on the same date, the Applicant repeated the factual basis of her non-refoulement claim.

THE JUDGE’S DECISION

8.  On 7 May 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[20] …The Applicant has not advanced any grounds in respect of these matters. Having rigorous examined the [Board’s Decision], the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism]; correctly applied the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The [Board’s Decision] was utterly without fault.

Conclusion

[21]  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.”

9.  On 25 July 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, she was over three years and two months late to lodge her appeal.  As summarised by the Judge, the Applicant raised three grounds of intended appeal, namely, (1) she disagreed with the Judge’s decision of 7 May 2021, (2) the Judge reached the decision unfairly in that she was not given an opportunity to clarify her case and situation in her country, and (3) she was in fear of harm if she had to return to Vietnam.  On 30 October 2024, the Judge refused the Applicant’s application, holding that she had failed to provide any explanation for the very substantial delay, and did not have any prospect of success in her intended appeal ([2024] HKCFI 2947).

THIS APPLICATION

10.  By a summons taken out on 11 November 2024, the Applicant applied to the Court of Appeal for leave to appeal out of time against the Order, and “to advance a new sole ground of appeal”, without identifying what that ground might be.  In her supporting affirmation of the same date, the Applicant said that she never received any correspondence from the High Court and was unaware of the rules concerning the 14-day time limit for appeal.

11.  The Applicant has failed to lodge written submissions in support of her application, contrary to the directions given by the Registrar of the Civil Appeals on 11 November 2024.

DISCUSSION

12.  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.

13.  The Applicant’s delay of over three years and two months is very substantial and serious.  We agree with the Judge that her explanation for the delay is not a valid excuse for the delay.

14.  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.

15.  The court’s general approach in dealing with appeals in non-refoulement claims 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 was a fresh application for judicial review (see Nupur Mst,at §14(6)).

16.  Further, the assessment of evidence, COI, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 7 May 2021, and has failed to raise any viable ground of appeal against the Order.  The suggestion that she was not given an opportunity to clarify her case and situation in her home country is without substance.  She raised no substantial ground of judicial review in the Form 86 or in her affirmation in support of the leave application, and did not request for an oral hearing of the leave application. The Judge was entitled to deal with the application on paper pursuant to Order 53, Rule 3(3) of the Rules of the High Court.  

18.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons of 11 November 2024 is dismissed.