HOANG THI MUOI v. TORTURE CLAIMS APPEAL BOARD

CAMP 292/2022

[2023] HKCA 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 292 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1501 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 30 December 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 27 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there is no merit in the intended appeal[2]. The applicant did not appear before the judge.

3.  On 8 August 2022, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order dated 30 December 2021.

4.  The applicant is a national of Vietnam. She is 56 years old. She entered Hong Kong illegally on 20 November 2019 and having surrendered to the Immigration Department, she raised a non-refoulement claim on 26 March 2020 on the basis that she would be harmed or killed by her creditors if she is returned to Vietnam.  

5.  By a Notice of Decision dated 26 July 2021, the Director rejected the applicant’s claim on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision and an oral hearing of the appeal before the Board was held on 24 September 2021. She gave oral evidence at the hearing. The Board found various discrepancies in her evidence compared to her answers in the Non-refoulement Claim Form submitted to the Immigration Department. She could not explain why she would leave her hospital job in Vietnam when she was able to save up her salary and did not encounter any trouble from her creditors in order to come to Hong Kong, knowing full well it would be illegal to take up employment here as an asylum seeker. The Board also found it incredible that the applicant accumulated a debt of 700 million Vietnamese Dong within three years of her fruit trading business, as she should have realised within three months that she was running a losing business and should not have carried on borrowing money when she was clearly not able to make ends meet. The applicant was unable to provide any documentary evidence in support of this alleged loan and fruit retail business. In summary, the Board found the applicant’s claim that she might be harmed or killed by creditors if she is returned to Vietnam exaggerated and unreliable. In any event, there was an absence of any official involvement of the state and internal relocation was not unreasonable. In light of its findings, the Board dismissed the applicant’s appeal on 22 October 2021.

The judge’s decision

7.  On 29 October 2021, the applicant filed a Form 86 for leave to apply for judicial review against the decision of the Board. As summarised by the judge[7], she put forward the following grounds for her intended challenge:

“(1) that the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test as her right to life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim as the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI [Country of Origin Information] but failed to take the Applicant’s personal background and experience into account;

(4) that the Director failed to consider or give sufficient weight to the COI which supported the Applicant’s case that the police in her home country would not be able to protect and ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5) that the Director failed to attain high standards of fairness in failing to consider the fact that corruption and incompetency of the police and the administration in the Applicant’s home country which various human rights organizations had compiled reports that stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(6) that the Adjudicator was procedurally improper and unfair when assessing whether to accept explanation provided by the Applicant and unreasonably required her to respond to questions which she was not in a position to offer any response;

(7) that the Adjudicator failed to take into account the nexus of political parties and official corruption which existed in the Applicant’s home country making persecution effectively persecution by the state; and

(8) that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and hence the decision is irrational.”

8.  The applicant requested a hearing in her Form 86 and the court scheduled a hearing for the leave application. However, she was absent in open court. The judge therefore decided the matter on paper.

9.  The judge found the applicant’s grounds above were all just broad and vague assertions without any explanation on how they are applicable to her case. As such, her assertions were not reasonably arguable for the intended challenge. The judge bore in mind that the evaluation of the risk of harm is primarily a matter for the Director and the Board, which they are entitled to make based on the evidence before them. The court will not usurp their role as primary decision makers in the absence of legal error or procedural unfairness or irrationality in the Wednesbury sense. As the judge did not find any error of law or procedural unfairness in the decisions of the Director and the Board, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim, he was not satisfied there was any prospect of success in the intended challenge. The judge therefore dismissed the applicant’s application on 30 December 2021.

Grounds of appeal

10.  In the applicant’s summons, she merely stated that she sought leave to appeal the judge’s order of 30 December 2021 out of time and asked for leave “to advance a new sole ground of appeal”. She did not elaborate on what the new sole ground of appeal was.

11.  In her supporting affirmation, she basically repeated what she had deposed in her affirmation before the judge in the application for extension of time to file a Notice of Appeal, namely that she did not receive the court documents. Again, there was no mention of what the new sole ground of appeal was.

12.  The applicant has not lodged any written submissions within time or at all. Pursuant to the directions of the Registrar of Civil Appeals dated 8 August 2022, any party who fails to lodge written submissions within time is deemed to have abandoned his or her right to rely on written submissions.

Analysis and disposition

13.  In considering whether to extend time for appealing against a decision refusing 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.

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 30 December 2021. The applicant took out a summons in the court below on 17 January 2022. She was late for 4 days. As the delay was not substantial, we shall focus on the merits of the intended appeal.

15.  In assessing the merits of the intended appeal, the court 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.

16.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave against her to bring judicial review. She asked for leave to advance a new sole ground of appeal but did not specify what that ground was. In any event, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

18.  As there is no prospect of success in the applicant’s intended appeal, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 30 December 2021 and dismiss the summons filed on 8 August 2022.