VU THI MAI v. TORTURE CLAIMS APPEAL BOARD

CACV 244/2021

[2021] HKCA 1576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2021

(ON APPEAL FROM HCAL NO 1397 OF 2018)

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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.  This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 30 April 2021 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 25 January 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 14 October 2016 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of Vietnam.  She entered Hong Kong illegally and subsequently lodged a non-refoulement claim form on 6 May 2016.

3.  The Applicant claims that if refouled to Vietnam, she would be at risk of being harmed or killed by her creditors for failing to repay her loans.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

4.  By a Notice of Decision dated 14 October 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed the Director’s Decision to the Board.  On 12 December 2017, the Board heard the appeal.

6.  On 25 January 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board was concerned about the Applicant’s general credibility, and found her to be confused and inconsistent especially in relation to the central issues of her claim (see Form CALL-1 at §9).  The Board also considered the fact that the Applicant had lived in her home district for around 10 years without being located by her creditors further undermined her claim.  The Board concluded that the Applicant had failed to establish any of the applicable grounds for non-refoulement protection.

THE JUDGE’S DECISION

7.  On 16 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision, and a supporting affirmation.

8.  The Applicant’s application for leave to apply for judicial review was late.  Citing AW v Director of Immigration and William Lam [2015] HKCA 519, the Judge held that in considering whether to extend time for making an application for leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reason for the delay; (3)  the merits of the intended application; and (4)  any prejudice to the putative respondent and to public administration should be an extension of time be granted (§12).

9.  The Judge found that the Applicant’s delay of 11 weeks was significant, for which she did not provide any explanation, and the record showed that the Board’s decision sent to her last reported address was not returned (§13).

10.  Citing various authorities including Nupur Mst v Director of Immigration [2018] HKCA 524, the Judge held that judicial review does not operate as a rehearing of a non-refoulement claim.  The court will not usurp the role of the Director and the Board as primary decision makers, and 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 (§15).

11.  Citing TK v Jenkins & Anor [2013] 1 HKC 526, the Judge held if the risk of harm is a localised one, and it is not unreasonable or unsafe for the applicant to relocate to another part of the country, there is no justification for affording non-refoulement protection (§17).

12.  The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§18), and concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§19).

13.  Accordingly, on 30 April 2021, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review, and dismissed her leave application.

THE APPEAL

14.  In her Notice of Appeal dated 13 May 2021, the Applicant stated that she still feared that she would be killed by her creditors in Vietnam.  On the same date, the Applicant consented to the appeal being disposed of on paper without an oral hearing.

15.  The Applicant did not lodge written submissions with this Court.  Instead, the Applicant faxed and posted two English letters dated 5 July 2021 and 5 August 2021 respectively to the Board.  Both letters were addressed to the “Hong Kong Supreme Court”.  In those letters, the Applicant again repeated her fear of being refouled back to Vietnam, but did not identify any errors in the Judge’s decision.

DISCUSSION

16.  Under Order 53, Rule 4 of the Rules of the High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  There was delay of some 82 days in the present case.

17.  The Applicant has given no explanation for the delay.  Nevertheless, this Court will go on to consider the merits of the appeal.

18.  In non-refoulement cases, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

19.  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 judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

20.  The Applicant has failed to identify any errors of law or failure by the Judge to take account of relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.

21.  For the above reasons, the present appeal has no merits, and is dismissed.