RE LUU THI KIM THUY AND ANOTHER

CAMP 595/2021

[2022] HKCA 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 595 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2705 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  The present application before this Court has been taken out by the 1^st Applicant (“A1”) only. She is the mother of the 2^nd Applicant (“A2”) who was born in Vietnam and who attained majority on 10 June 2022. On 2 September 2020, DHCJ Bruno Chan (“the Judge”) refused to grant leave to either of them (collectively called “the Applicants”) to apply for judicial review concerning their non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, an applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 2 November 2020, only A1 filed a summons in the Court of First Instance on for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 29 April 2021.

3.  On 24 December 2021, A1 filed a summons in CAMP 595/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision. In the part of the Summons identifying the party issuing it, A2’s name had been written but was then crossed out. Although his name appeared under A1’s name in another part of the Summons, it is significant that the summons for extension of time before the Judge was clearly made by A1 only as it bore only her name.

4.  The Registrar of Civil Appeals gave directions on 24 December 2021 for the lodging of written submissions. On 10 January 2022 (3 days late), A1 lodged a written submission. It is clear from the contents that it was lodged by A1 only, and not on A1’s behalf of A2, which confirms that this Summons is only brought by A1. Consequently, this Judgment will deal with A1 only.

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  A1 entered Hong Kong illegally on 8 June 2012. A1 lodged a non-refoulement claim for herself on 2 May 2014. She was legally represented before the Director of Immigration (“the Director”).

7.  A1 claimed that, if she were to return to Vietnam, she would be harmed or even killed by creditors to whom her husband and she owed money. Her case was that she had borrowed money from a number of creditors, and when she failed to repay them, they threatened that she and her family would be killed. The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2020] HKCFI 2122).

8.  By a Notice of Decision dated 20 October 2017, the Director decided against A1’s claim (as well as A2’s). The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and the persecution risk[4].

9.  A1 (together with A2) appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”). As the Board took no issue on the credibility of A1’s account of events, it did not find it necessary to conduct an oral hearing and disposed of the appeal on paper. In its decision dated 15 November 2018, the Board rejected the appeal/petition and confirmed the Director’s decision. Even on A1’s own evidence, none of the creditors had actually caused any physical harm to the Applicants, except that A1 and her husband were slapped once by one of the creditors, and their house was vandalized in or about October 2011 ([6] – [8]). The Board took the view that the creditors had no real intention to harm the Applicants but only tried to exert pressure on A1 to repay the loan ([20]). Further, the disputes were personal financial matters with no state or official involvement. Relevant country of origin information (“COI”) suggest that state/police protection would be available to the Applicants upon their return to Vietnam. As for A1’s statement that some creditors had issued legal actions against her and she would face lawsuits if she returns to Vietnam, the Board took the view that there is no evidence that A1 would be persecuted or that she would not receive a fair trial ([22] – [36]). Internal relocation is a viable and reasonable option to avoid any possible threats and harms from the creditors, and it was not believed that the creditors would be able to track her down all over Vietnam ([49] – [52]). For the aforesaid reasons, her non-refoulement claim was rejected on all applicable grounds. We do not need to discuss the Board’s decision regarding A2 as it is not relevant to the matter before us.

Decision of the court below

10.  On 29 November 2018, A1 (together with A2) filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was provided in the Form. In A1’s supporting affirmation, she merely repeated her claimed fear that she and her family would be harmed or even killed by the creditors if refouled to Vietnam.

The JR Decision

11.  An oral hearing was fixed for 5 August 2020 but A1 failed to attend. The Judge proceeded to dispose of the application on paper. After due consideration of the Board’s decision, the Judge refused to grant leave for judicial review for reasons set out in [11] - [14] of the JR Decision:

“11. On 29 November 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in her supporting affirmation of the same date she merely repeated her claim of fear of being harmed or killed by her creditors if refouled to Vietnam without putting forward any proper grounds for their intended application. Nor did they attend the oral hearing of their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

12. 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.

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

14. 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 Applicants’ claim.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, A1 failed to file a notice of appeal within time, and filed a summons in the Court of First Instance on 2 November 2020 for an extension of time to appeal. That was dismissed by the Judge on 29 April 2021. Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

14.  As for (1), A1was late by more than 6 weeks between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance. The delay was substantial.

15.  As for (2), the reasons for the delay, the court record showed that the JR Decision was sent to A1’s last reported address on 2 September 2020 (the same day the JR Decision was handed down) without being returned through undelivered post. However, A1 mentioned in her affirmation dated 24 December 2021 in support of her application to this Court that “I was late because I received the decision late.” As A1 failed to explain in any detail what caused the delay in receiving the JR Decision, we are not satisfied that there is any good reason for the delay.

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. A1 failed to put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision, or why it may be reasonably argued that the JR Decision was unfair or unreasonable. In her supporting affirmation, the A1 merely repeated her claimed fear of being harmed or killed by her creditors over her outstanding debt. The written submissions merely repeated the factual background of her case.

17.  It is clear from the Board’s decision that even on her own evidence, she did not suffer any or any serious physical harm or injury from the creditors in Vietnam, and the dispute was private in nature without any state involvement. Relevant COI suggested that there is reasonable state protection in Vietnam, and internal relocation is a viable and reasonable option to avoid the creditors. It is perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds. As with the Judge, we do not see any in this case.

18.  For these reasons, it would be futile to extend time to appeal. Accordingly, we dismiss the 1^st Applicant’s summons filed on 24 December 2021.