LE THI MIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 357/2023, [2024] HKCA 479

On Appeal From [2023] HKCFI 1987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 357 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1208 OF 2019)

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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 K.W. Lung (“Judge”)  dated 8 August 2023 [1] refusing to grant the applicant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 11 April 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 5 June 2017 rejecting her non-refoulement claim.

2.  On 15 November 2023, the Judge refused to extend time for the applicant to appeal against his decision of 8 August 2023.

Background

3.  The applicant is a national of Vietnam born in 1979.  She had entered Hong Kong illegally and subsequently surrendered to the Immigration Department on 10 November 2015.  On the same date, she submitted written signification of her intention to claim non-refoulement protection on the basis that she would be harmed or killed by her creditor (Madam Vu Thi Hoa)  and her followers due to her inability to repay a 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 5 June 2017, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 7 March 2019, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 11 April 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [8] to [9] of the Form CALL-1:

“ 8. The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing for her appeal, during which he testified [4]. Having considered the applicant’s evidence, the Board concluded that the applicant was a dishonest and unreliable witness and her claim was not genuine [38. (e)].

9.   The Board found that the applicant did not report the matter to police [38. (a)]; that her stay in Ho Chi Ming city for 2 months was uneventful [38. (c)]; that the threats and harassment from the creditor was far from severe pain and suffering, physical or mental, which triggered her escape from Vietnam [38. (d)].”

The Judge’s decisions in the court below

6.  On 6 May 2019, 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, without specifying any grounds in that form.  The applicant’s reasons in her supporting affirmation have been succinctly summarized in [12] of the Form CALL-1 as follows:

“ 12. In her affirmation in support of her application, the applicant set out the reasons below.

(1)  The Board had applied subjective views to her stated facts of the case and whereupon had made speculations, which is unfair to her.

(2)  The Board simply speculated that the creditor would not pursue the debt.

(3)  The Board had failed to cite the origins of the COI when it applied the information to her case. The Board had not pointed out the corruption of the police in Vietna.

(4)  The adjudicator had not resided in Vietnam and he had no idea of corruption of the police in Vietnam. Police accepted advantage from the loan sharks and ignored the citizens’ complaints. The Vietnamese police are so corrupt that the citizens have lost confidence in them. This can be seen from the media of Vietnam.

(5)  If the applicant returns to Vietnam, she will not have a fair trial as well because the Judiciary in Vietnam are also corrupt. The applicant, being a resident in Vietnam, can testify that the Vietnamese government are corrupt. The Prime Minister had stepped down because of corruption of his government.

(6)  The Board had applied its subjective views to all risks and made its decisions against the applicant, which is an underestimate of her risks.”

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 8 August 2023, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [13] to [20] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.’

16. The Board, for the reasons given above, concluded that the applicant was a dishonest and unreliable witness. Judging from the reasons in paragraph 9, supra, I hold the view that her evidence may be regarded as exaggerations and unreliable rather than dishonesty. However, the Board was quite entitled to conclude that her evidence in support of her claim was unreliable.

17. As to the grounds in paragraph 12 ground (1), (2)  and (6), they are general or bare allegations without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘ 20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’

18. As to ground (3), the Board had considered the allegation of police corruption in Vietnam. It is not necessary for the adjudicator to reside in Vietnam to understand the situation there. The fact that the Prime Minister stepped down because of corruption of his government shows that the Vietnam government takes corruption as a serious matter. The Prime Minister took responsibility of his government and stepped down so that his replacement may address the issue effectively.

19. There is no valid ground from the applicant to challenge the Board’s Decision.

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

8.  The applicant did not file a notice of appeal, but instead filed a summons in the Court of First Instance on 13 September 2023 seeking an extension of time to appeal.  In the supporting affirmation, the applicant stated that she was informed by family members that it was dangerous for her to return to Vietnam as she would be killed and that she was unrepresented with no means to instruct a private lawyer.

9.  The applicant’s summons was dismissed by the Judge.  In his written decision dated 15 November 2023, the Judge said that the applicant had not been able to raise any valid reasons to challenge the Board’s decision.  Extension of time was therefore refused as there was no realistic prospect of success in her intended appeal.

The renewed application before this Court

10.  By summons filed on 28 November 2023, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  In her supporting affirmation, she stated that she is “unrepresented and did not have access to any legal advice” and that she understands “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review” without any elaboration of what that ground was.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 28 November 2023.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap 4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  As at 13 September 2023 when she filed her summons for extension of time, the applicant was in fact still within time for filing a notice of appeal against the Judge’s decision dated 8 August 2023, since the 14-day time limit for appeal did not run within the month of August (the court vacation)  by virtue of section 31 of the High Court Ordinance (Cap 4).  It did not appear that the Judge took that fact into account in dealing with the summons for extension of time.

13.  Whilst the summons before this court on its face seeks leave to appeal against the Judge’s decision dated 15 November 2023, it should properly be treated as a renewed application for extension of time to appeal against the Judge’s decision of 8 August 2023: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, §§4-8.

14.  Whilst the applicant filed a summons in the court below on 13 September 2023 when a notice of appeal could have been filed within time, the fact remains that she failed to initiate an appeal within the time prescribed by law.   While the delay can be regarded as technical, an extension of time for filing the notice of appeal is nevertheless needed and the merits may still be taken into account by this court in deciding whether to grant an extension of time in these circumstances: Re Usman Yumiati [2021] HKCA 992; Re Jami Mahmood [2021] HKCA 993; Re Akif Muhammad [2021] HKCA 994.

15.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board rejected the applicant’s non-refoulement claim, because it found that she was dishonest, unreliable and not a genuine claimant.  As such, the Board had no factual basis to accept the applicant’s claim of any risk of harm in addition to internal relocation being a viable option, if necessary.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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 error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The Judge held that the applicant had failed to show a reasonably arguable case for establishing any such public law grounds. 

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.  As to the applicant’s complaint about lack of legal representation, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  The applicant was legally represented in the initial preparation of her case by the completion of the non-refoulement claim form, which formed the important basis of her claim and any actions afterwards were based on this.  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.  We do not see any prospect of success at all in the intended appeal.  It would be utterly futile to grant an extension of time to appeal, even though the applicant’s delay in filing an appeal might be regarded as technical.  The applicant’s summons is accordingly dismissed.