TRINH THI HONG THU v. DIRECTOR OF IMMIGRATION

CAMP 216/2022, [2024] HKCA 229

On Appeal From [2021] HKCFI 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 216 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 151 OF 2021)

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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 application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 20 April 2021[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“Director”) dated 29 January 2021 refusing to allow the applicant to make a subsequent non-refoulement claim.

2.  On 7 September 2021, the Judge refused to extend time for the applicant to appeal against his decision of 20 April 2021.

Background

3.  The applicant is a national of Vietnam born in 1978.  She claimed to have first entered Hong Kong illegally from Mainland China on 26 October 2015 and surrendered to the Immigration Department on 2 November 2015.  The applicant made a non-refoulement claim by way of written signification dated 4 January 2016 on the basis that she would be harmed or killed by a creditor due to her failure to repay the loan, if she was refouled to Vietnam.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 10 March 2017, the Director rejected the claim.  The applicant did not lodge any appeal / petition against that decision.  She was repatriated to Vietnam on 11 April 2018.

5.  The applicant subsequently entered Hong Kong illegally again and was arrested by the police on 17 November 2020.  By letters dated 7, 9 and 14 December 2020, she requested to make a subsequent claim for non-refoulement protection under the Unified Screening Mechanism.  On 8 January 2021, the applicant was requested to provide further information and evidence in support of any significant change(s) of circumstances warranting a subsequent claim.  In response, she provided her letter dated 12 January 2021.

6.  By notice of decision dated 29 January 2021, the Director refused to permit the applicant to make a subsequent claim.  In assessment of the applicant’s case, the Director considered that the further information provided by the applicant was a general update of her situation in Vietnam and had already been submitted and considered in her previous claim.  The Director found that the further information provided was related to the previous monetary dispute with the creditor and that internal relocation would still be viable.  Therefore, the Director did not accept that there had been any significant change of circumstances since her previous claim was determined and that there was no change to give her intended subsequent claim a realistic prospect of success.

The Judge’s decisions in the court below

7.  On  11 February 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 29 January 2021, without specifying any grounds for judicial review in that form.  In the affirmation, she reiterated that she sought leave to apply for judicial review against the decision of the Director.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 20 April 2021, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [5] to [9] of the Form CALL-1 as follows:

“ 5. As section 37ZR of the Ordinance does not provide avenue for appeal to the Board against such a decision of the Director in refusing a request to make a subsequent claim, the Applicant on 11 February 2021 filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

6. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7. In the Applicant’s case, the Director has in my judgment correctly found even on her own case at the highest that the new information disclosed by her for her subsequent claim is wholly premised on her previous dispute with her creditor over her outstanding loan which had already been properly dealt with before by the Director, and that it does not constitute any significant change of circumstances that justify a subsequent claim, nor would it give the subsequent claim any realistic prospect of success. as it has been clearly established by the Director in his earlier decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526, or for her to make a subsequent claim on the same basis.

8. In the premises and having considered both decisions of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.

9. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

9.  Two days after the expiry of the 14-day time limit, the applicant filed a summons on 6 May 2021 together with a supporting affirmation to apply for extension of time to appeal against the Judge’s decision dated 20 April 2021 and to judicially review the Director’s decision.  It also stated that her delay was due to failure of  receiving “the notification for appeal previously”.  In her affirmation, the applicant repeated the basis for her non-refoulement claim and the reason for her delay.  An oral hearing was held by the Judge on 24 August 2021, but the applicant was absent.  On 7 September 2021, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.

The renewed application before this Court

10.  By summons filed on 27 June 2022, the applicant made an application for leave “to appeal to the Court of Appeal from the Order of Deputy High Court Judge Bruno Chan (“the Order”) out of time”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 20 April 2021 refusing leave for judicial review.

11.  In the applicant’s supporting affirmation, she stated that she was unrepresented and did not have access to any legal advice.  She also stated that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review” without any further elaboration.

12.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 27 June 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for 2 days when she filed her initial summons on 6 May 2021.  In her supporting affirmation, the applicant stated that the delay was due to not receiving “the notification for appeal previously”.  As this is not a lengthy delay, we are prepared to focus on the merits of her intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide an avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Director. 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Director afresh as if the appeal were a fresh application for judicial review.

15.  Subsequent non‑refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“ 37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

16.  In the present case, the Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of her previous claim.  As such, the Director refused to permit the applicant to make a subsequent claim for non-refoulement protection on the ground that that there had not been a significant change of circumstances and gave reasons for coming to that conclusion.  Such a decision is within the province of the Director, and the court will not interfere unless it is vitiated on public law grounds.  No such grounds have been raised by the applicant.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 27 June 2022 is accordingly dismissed.

[1]   [2021] HKCFI 1053.

[2]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]   This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]   This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).