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

CAMP 119/2024, [2024] HKCA 970

On An Intended Appeal From [2024] HKCFI 651 &

[2024] HKCFI 1619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 2142 OF 2023)

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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 8 July 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 26 June 2024 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 12 March 2024 (“the Order”)  refusing to grant her 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 5 September 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 16 December 2021 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a 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 first entered Hong Kong illegally on 26 April 2019 and was repatriated back to Vietnam on 16 May 2019.  Subsequently, she re-entered Hong Kong illegally and was arrested by the police on 1 July 2021.  On 22 July 2021, she raised a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor Doan for being unable to repay a loan.  Details of the Applicant’s claim have been summarised by the Judge at §§3-8 of the CALL-1 Form.

5.  By a Notice of Decision dated 16 December 2021, the Director rejected the Applicant’s non-refoulement claim on all 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 5 September 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §13 of the CALL-1 Form:

“The Board noted that the applicant’s evidence in relation to the loan interest and the debt collection incidents were inconsistent, but it gave her the benefit of the doubt that she might have mistaken about the details due to the lapse of time. However, the Board was of the view that the applicant did not face a real risk of harm in light of the duration and intensity of attack by Doan [67]-[81]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [29]-[30], [83]-[85], BOR 2 and BOR 3 risk [31]-[39], [86]-[87] or Persecution risk [40]-[44], [88]-[92]. Furthermore, state protection and internal relocation were also available to her [52]-[66], [92]-[95].”

7.  On 30 November 2023, 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 or in her affirmation filed in support of her application. 

THE JUDGE’S DECISION

8.  On 12 March 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[20] The Board had heard the applicant’s evidence and accepted that she was indebted to the moneylender. However, the adjudicator came to her conclusion on the reasons below.

‘78. If Doan seriously intended to harm of kill her, it was to be expected that he and/[or] his enforcers would attack her more seriously, both in terms of duration and intensity. Further, on the first occasion, Doan only warned her, and on the second occasion, she was beaten up briefly and it took her one week to recover from the injuries received. Even on the third occasion when she was attacked with wooden sticks, she had managed to recover in 2 to 3 days. It is apparent that the injuries inflicted was not serious.

79. Further, no harm has been received by her family members.

80. The only reasonable conclusion, in my view, is that they did not in fact seriously intend to harm her, that rather their aim was simply to frighten her into finding the money by any means possible so as to repay the loan.

81. I therefore conclude that the harm and risk the Appellant was likely to face on her return to Vietnam was low. …’

[21] On the evidence before it, the adjudicator was entitled to come to her views above. The applicant has raised no valid reason to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s findings of the facts in this case.

[22] The Board had also taken into account of state protection and internal relocation in Vietnam, though it did not state explicitly in the Board’s Decision that those options are open to the applicant.

[23]  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

9.  On 23 April 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, she was four weeks late to lodge her appeal.  On 26 June 2024, the Judge refused the application, holding that the Applicant had failed to raise any valid reason to challenge the Board’s Decision and there was no realistic prospect of success in her intended appeal.

THIS APPLICATION

10.  By a summons taken out on 8 July 2024, the Applicant applied for an extension of time to appeal against the Judge’s order of 26 June 2024.

11.  In her affirmation of the same date, the Applicant says that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case or the situation in her country.  She also says that the merits of this ground of appeal constituted sufficient reason or justification for the court to exercise its discretion to allow her appeal out of time.

12.  In a statement dated 8 July 2024 attached to the summons, the Applicant asserts that if she returns to Vietnam, her life will be seriously threatened and she may even be killed because most of the creditors and gangsters in Vietnam are cruel and violent, and they are willing to kill people to satisfy their anger and ferocity.  She disagrees with the Director that she can relocate to live in another part of Vietnam for various reasons. She also alleges that the Immigration Department failed to consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights. 

13.  The Applicant has failed to lodge written submissions in support of her application, contrary to the directions given by the Registrar of Civil Appeals on 8 July 2024.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

15.  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.

16.  In the present case, the length of the Applicant’s delay is substantial, and she has given no good or valid explanation for her delay.

17.  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.

18.  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 a non-refoulement case, 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)).

19.  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 such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

20.  The Applicant’s complaint that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case or the situation in her country has no merits.  The Applicant did not request for an oral hearing in the Form 86.  In view of the apparent lack of merits of the application, the Judge was entitled, in the exercise of his discretion under Order 53, rule 3(3)  of the Rules of the High Court, Cap 4A, to deal with the leave application on paper.

21.  The Applicant has failed to identify or show any error in the Judge’s decision of 12 March 2024, and has failed to raise any viable ground of appeal against the Order.

22.  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

23.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 8 July 2024 is dismissed.