TRAN NGOC CHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 205/2023, [2023] HKCA 1090

On Appeal From [2021] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 205 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 911 OF 2018)

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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 24 August 2021[1] refusing to grant an extension of time for the applicant to apply for leave for judicial review and dismissing the application for leave for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 29 December 2017.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 November 2016 rejecting her non-refoulement claim.

2.  On 3 August 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a national of Vietnam born in 1994.  She was arrested by the police on 27 August 2014 for being an illegal immigrant.  On 29 August 2014 and 1 September 2014, she lodged a non-refoulement claim by way of written significations on the basis that she would be killed by a loan shark (Ms Nga) and her henchmen 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,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By a notice of decision dated 10 November 2016, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision and an oral hearing was held accordingly on 16 November 2017.  The Board rejected the applicant’s claim of being indebted to a loan shark in its entirety, and held that such claim was manufactured in order to seek non-refoulement protection in Hong Kong.  It found there were numerous inconsistencies and deficiencies in the applicant’s evidence, such as the inability to recall crucial details of the alleged loan to support her restaurant business, and contradictions amongst her written and oral evidence.  This included that she told the Director that her mother was unhelpful and had abandoned her after incurring the debt with Ms Nga, but during the Board hearing, the applicant said her mother was in fact helping to take care of her child in Vietnam.  The applicant also gave different testimonies regarding the time she was attacked by the loan shark’s henchmen, and her whereabouts after she was attacked.  Accordingly, the Board rejected the factual basis of the applicant’s claim and held that she would not face any real risk of harm upon her return to Vietnam.  Hence, by the written decision of the Board dated 29 December 2017, the appeal was dismissed and the Director’s decision dated 10 November 2016 was confirmed.

The Judge’s decisions in the court below

6.  On 23 May 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision.  However, she was late by almost two months under Order 53 rule 4(1) of the Rules of the High Court (Cap 4A). As for the grounds of her intended challenge which she set out in her affirmation, the Judge summarised them at [8] of the Form CALL-1 dated 24 August 2021 as follows:

“ 8. … [the applicant] put forward the following grounds for her intended challenge:

(1) that it was unfair for the Adjudicator to criticize and doubt her claim simply because she was unable to remember all the minor details which occurred years ago and selectively disregarded those other facts and information which she was able to corroborate her claim;

(2) that the Adjudicator was biased against the Applicant for doubting her claim of being able to operate a restaurant at her young age without proper basis and due to her lack of basic knowledge of the real situation in Vietnam;

(3) that the Adjudicator underestimated the risk of harm to the Applicant upon her return to Vietnam or her fear of being harmed or killed by her creditor which the local police would not help; and

(4) that the Board was taking too long to arrive at its conclusion and decision that even up to May 2018 when the Applicant still had not received its decision.”  

7.  The Judge considered the application on the documents alone and on 24 August 2021, by the Form CALL-1, refused to grant extension of time and dismissed the application for leave to apply for judicial review.  The Judge’s reasoning was set out in [11] to [21] of the Form CALL-1 as follows:

“11. In the Applicant’s case, a delay of almost 2 months must be considered as very substantial, for which she explained in her affirmation that she never received the decision in the mail, and that it was only much later when she reported on her recognizance that she was informed by her immigration officer of the outcome of her appeal that she had to instruct her lawyer to write to the Immigration Department on 22 January 2018 for a copy of the Board’s decision when by then she was already out of time with her intended application.

12. In support of her assertions, the Applicant did produce copies of two letters from her then lawyers dated respectively 22 January 2018 and 7 May 2018, with the former to the Immigration Department requesting for a copy of the Board’s decision which the Applicant had never received in the mail. While it did not disclose her then address in the letter, I am prepared to accept that she had until then not received the decision in the mail, but surely thereafter she would have received it after the Immigration Department had received her lawyer’s letter, as evidenced by the second letter of 7 May 2018 which requested for another copy of the decision as the Applicant was as stated in the letter for unknown reason unable to find the decision which the Department had earlier forwarded to her.

13. In the circumstances, while the Applicant might as a result have received the Board’s decision somewhat late in February 2018 after her lawyer’s first letter, it would still have been within the three-month period for her to file her Form 86 even if she was indeed unable to do so promptly as required by the rule, yet she ended up only filing her Form 86 almost 2 months later on 23 May 2018, and for which I am not satisfied that she has provided any good reason for such delay.

14. As for the merits, if, any, of her intended application, I refer to the Applicant’s proposed grounds as stated above, of which Ground (4) can be rejected right away as the Board’s decision dated 29 December 2017 must have been received by her shortly after her lawyer’s first letter to the Immigration Department and well before she filed her Form 86, as it was clearly referred to in her Form as the decision that she wishes to challenge, and which she did also refer to in her supporting affirmation in her other complaints regarding the decision, hence her complaint of never receiving the Board’s decision is both factually incorrect and not arguable at all for her intended challenge.

15. [As] for her complaints under Grounds (1) and (2) that it was unfair of the Adjudicator to doubt her claim of having run a restaurant in Vietnam at her young age and when she was unable to remember minor details of the operation as it occurred years ago, it would be relevant to first refer to the Adjudicator’s findings on the Applicant’s evidence as to the establishment and operation of the restaurant at paragraph 38 of the decision:

‘ Firstly, I consider that the Appellant’s evidence during the hearing as to her employment as a hairdresser and subsequently as the co-owner of a restaurant is not credible. The Appellant’s evidence during the hearing as to employment as a hairdresser was somewhat inconsistent with her written evidence. Her evidence as to why and how she established a restaurant, at the age of 18 or 19 years, with no previous experience, was vague and unpersuasive and indicative of the fact that she was not speaking from her personal experience, and was instead fabricating evidence during the hearing. Although I accept that eth Appellant has not claimed to have established a large restaurant, I nevertheless consider that had she established a restaurant business at any time that she would have been able to speak more persuasively about issues such as the type of equipment required, the fit-out of the restaurant and advertising for the restaurant. I also consider that any restaurant which was established in 2013 would have given some consideration to online advertising. I am not satisfied that the Appellant’s evidence indicates that she and her business colleague had given any consideration to such issues. I also consider that it is not credible that the Appellant would have no documentation in relation to the establishment of a restaurant and consider it highly unlikely that the Appellant at any time established a restaurant in Vietnam.’

16. The Adjudicator had had the benefit of hearing the Applicant’s evidence at the appeal hearing on 16 November 2017 which was only some 4 years after the Applicant had allegedly established her restaurant and should therefore still be relatively fresh in her memory, and given that the burden of establishing her claim was in the Applicant, and in the absence of any other evidence including documentary from her to corroborate her bare assertions regarding the establishment and operation of her restaurant which was the cause for the loan and the core of her claim, it was in my view entirely appropriate for the Adjudicator to raise those issues as noted above and to draw attention to the matters that obviously required clarification and elaboration from the Applicant given her stated young age at the time when she decided to go into a business in which she had no prior experience, and which was to take place not in some remote village but in a major industrial city as Hai Phong City, and in the absence of any satisfactory explanation or clarification from the Applicant to those issues, the Adjudicator was in my view entitled to doubt the credibility of her claim. As such I do not find these complaints of the Applicant reasonably arguable for her intended challenge.

17. As for her complaint under Ground (3) that the Adjudicator had underestimated the risk of harm from her creditor upon her return to Vietnam, given the Adjudicator’s correct finding as to the credibility of the Applicant’s claim of having borrowed any loan for establishing any restaurant, it seems academic to me to consider whether the Adjudicator had indeed underestimated such risk, but nevertheless it is clear that the Adjudicator did take into proper consideration from relevant COI of such risk from loan sharks and debt collectors in Vietnam (see [35] – [37] of decision). In the premises and for these reasons, I do not find this complaint of the Applicant reasonably arguable for her intended challenge either.

18. 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.

19. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. In the premises and having considered the decisions of both the Director and the Board 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 their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her substantial delay, I refuse to extend time and accordingly dismiss her leave application.”

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but filed a summons on 17 January 2022 to apply for extension of time to appeal against the Judge’s decision.  The Judge held a hearing on 20 July 2022 but the applicant failed to attend it.  By his decision dated 3 August 2022,[7] the Judge stated that the court’s decision was sent by post to the applicant on the date it was issued, and decided to refuse to extend time on the ground that there was no prospect of success in the intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 1 June 2023, the applicant made an application seeking to set aside the decision(s) of the Judge, which we shall treat as an application for extension of time to appeal against the Judge’s dismissal of the applicant’s application for leave to apply for judicial review.  In the accompanying affirmation, the applicant merely repeated the factual basis of her claim (ie the alleged outstanding debt) and her fear of returning to Vietnam, without setting out any proper grounds of appeal against the Judge’s decision.

10.  Despite having acknowledged the directions of the Registrar of Civil Appeals for written submissions to be lodged on or before 15 June 2023, the applicant has failed to date to provide any written submissions in support of her application.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  In seeking to appeal against the Judge’s order dated 24 August 2021, the applicant was late for more than four months when she filed her summons on 17 January 2022.  This is a substantial delay and the applicant has provided no satisfactory explanation for her delay in taking steps to appeal against the Judge’s decision.  In the circumstances, an extension of time should not be granted unless there are real prospects of success in the intended appeal.

13.  In the present case, the Board had the opportunity to hear the applicant’s evidence, and came to the conclusion that it was fabricated in order to seek non-refoulement protection in Hong Kong.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the very detailed reasons it had given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law errors, such as misdirection in law, procedural unfairness, or irrationality in the ultimate decision.  The applicant has failed to make out or even identify any such public law grounds.

14.  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 raise any grounds of appeal to show how the Judge has erred in refusing to grant leave for judicial review.

15.  We do not see any prospect of success in the intended appeal. The applicant’s summons is accordingly dismissed.