RE DO THI THINH

CACV 254/2021

[2022] HKCA 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 254 OF 2021

(ON APPEAL FROM HCAL NO. 2454 OF 2019

AND HCAL NO. 712 OF 2020)

(Consolidated pursuant to the Order of Deputy High Court Judge Bruno Chan dated 6 October 2020)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant extension of time to the applicant to apply for leave for judicial review and dismissed the application for leave to apply for judicial review.  The intended challenge is against the decision of the Torture Claims Appeal Board (‘the Board’)  on 24 November 2017.

2.  The applicant has consented to the appeal to be disposed of on paper without an oral hearing and accordingly we will deal with this application on paper.

2)  Background

3.  The applicant is a national of Vietnam.  She left Vietnam for Mainland China and from there she illegally entered Hong Kong in March 2015.  She shortly raised a non-refoulement claim in July 2015 on the basis that if she returned to Vietnam she would be harmed or killed by a moneylender and men associated with the moneylender who belonged to the triads and whom she was owed money to.

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL-1 Form.

3)  The Director’s Decisions  

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 28 April 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

6.  The Director decided against the applicant’s right to life claim on 10 March 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decisions to the Board.  The Board dismissed the applicant’s appeal against the Director’s decisions on 24 November 2017, which has taken into account the Director’s Further Decision.

8.  The Board held that it was the applicant’s own speculation that she would be harmed by the moneylender and her men, notwithstanding the fact that she had never been assaulted physically by them.  The loan problem between the parties was private in nature and the state was not involved.  The applicant’s decision to leave Vietnam had nothing to do with the local government nor for any risk of her life.  The Board was not convinced, after a long lapse of time, that the moneylender was still interested in pursuing the applicant.  Internal relocation was possible.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

9.  The applicant filed her Form 86 in HCAL 2454/2019 on 26 August 2019 out of time for over one year with a supporting affirmation.  Both of these documents did not contain any proper grounds for judicial review.  However, before the Judge could deal with her application, the applicant applied to withdraw her application in January 2020.  In April 2020, however, the applicant re-applied and filed another Form 86 in HCAL 712/2020 for leave for judicial review based on the same Board decision.  Again no proper grounds for judicial review were contained in her documents.  The Judge ordered that both applications be consolidated and dealt with together.

10.  The Judge assessed the applicant’s documents and held that there was no good and valid reason for the serious delay in making her application for leave to apply for judicial review, despite her claim that she was detained in correctional facilities which was without any evidence in support.  As for the merits of her application, the applicant failed to put forward any proper grounds for the intended challenge.  There was no error of law to be found and there was no reasonably arguable basis for her intended challenge.

6)  Grounds of appeal

11.  The applicant stated in her notice of appeal that her life is still in danger.  She cannot return to Vietnam because she borrowed a lot of money from her moneylender.  If the moneylender finds her upon her return, the moneylender would kill her.

12.  She further stated in her written submissions that Vietnam was a corrupt country.  There is no moral nor justice in Vietnam.  The gangsters in Vietnam have a close relationship with the state and civilians could not protect themselves.  She fears for her life.

7)  Our view

13.  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement claims cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In our view, there are no merits in the applicant’s appeal. Consideration of the evidence is the task of the Board.  The applicant has not provided any proper grounds of appeal.  The Judge had provided his reasons for refusing the application in his decision.

15.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.