RE NGUYEN THI GIANG

CAMP 328/2021

[2022] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 328 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1292 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 leave to appeal out of time against the decision of Deputy High Court Judge C P Pang (“Judge”) on 11 March 2021[1] refusing to grant leave out of time 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 8 March 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 19 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 22 July 2021, Deputy High Court Judge K W Lung refused to extend the time for the applicant to appeal against the Judge’s decision of 11 March 2021.[2]

Background

3.  The applicant is a Vietnamese national. She had entered Hong Kong illegally or breached her condition of stay here for the purpose of looking for her younger sister in 2000 and 2010. She last entered Hong Kong in 2013 and was arrested by police in Hong Kong on 31 May 2013 for entering and remaining without permission, and for theft; she was subsequently convicted and sentenced to 15 months’ imprisonment. She lodged a non-refoulement claim on 7 March 2014.

4.  The applicant’s claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by triads who pursued her for repayment of her husband’s debts. The factual background was summarized at [17] to [29] of the Board’s decision.

5.  By notice of decision dated 19 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 19 January 2018, during which the applicant answered questions from the Board. The Board did not reject the applicant’s claim that certain men had confronted her, but considered that it was more probable that they were simply trying to extort money from her and that it was clear that they had no intention to harm her seriously or kill her. The Board found that the applicant had not suffered any serious injury or harm and that she had only been attacked once by the men claiming to be her husband’s creditors. The Board held that the harm did not constitute torture or cruel, inhuman or degrading treatment or punishment or risk to life, and did not stem from her race, religion, nationality, membership of a particular social group or political opinion.

7.  Thus the Board found that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable for the applicant who had had training in handicraft and worked as a hawker. In the result, the Board dismissed the applicant’s appeal on 8 March 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 5 July 2018, beyond the 3-month time limit for application for leave to apply for judicial review, the applicant sought leave out of time from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the applicant related the factual basis for her claim, and stated that the Board did not understand her circumstances in Vietnam and was not fair to her.

9.  Following consideration of the documents only as the applicant did not request for an oral hearing in her Form 86, on 11 March 2021 the Judge refused to grant leave out of time to apply for judicial review. The reasons were set out at [18] – [25] of the Form CALL-1 as follows:

“ 18. In the present case, the Board did not take issue with the applicant’s asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its finding on the viability of internal relocation.

19. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20. The applicant mentioned nothing in the Form 86 or in the affirmation in specifics to suggest how the Board erred in the public law sense. The bare allegation of unfairness without particulars or evidence in support cannot constitute a viable ground for judicial review.

21. Indeed, the Board has taken a view on credibility favourable to the applicant. The applicant delayed in lodging the claim for protection after she came to Hong Kong illegally and only after she was arrested. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as adversely affected the credibility of the claim. An adverse view on credibility could have been taken by the Board.

22. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. It came nowhere near the level of severity required by law for international protection to be offered. There was also no valid reason why her husband’s creditors would target the applicant and still wish to pursue the applicant after so many years. She can also safely relocate to other parts of Vietnam.

23. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

24. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

25. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

10.  On 24 May 2021, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In her supporting affirmation, the applicant briefly repeated the factual basis for her claim, but did not provide any explanation for her delay or set out any proposed grounds of appeal.

11.  Following consideration of the documents only, on 22 July 2021, Deputy High Court Judge K W Lung refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and thus dismissed the summons.

The renewed application before this Court

12.  On 9 August 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 11 March 2021 refusing to grant leave to apply out of time for judicial review. In her supporting affirmation, the applicant explained that she was late in trying to appeal because she did not receive the court’s letter while her home was being repaired and she was temporarily staying with a friend. She further explained that she does not speak English or Cantonese, and did not know how to fill out and file an appeal and had to ask for help from friends. She also briefly reiterated the factual basis of her non-refoulement claim, and stated that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.

13.  The applicant lodged written submissions on 16 August 2021, in which she referred to the factual background as well as the procedural history of her non-refoulement claim. In the remainder of her submissions, she set out certain general legal principles and quoted passages from authorities and statutes, and asserted that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility. However, the applicant did not provide any details or particulars in support of her arguments, or put forward any intended grounds of appeal alleging specific errors made by the Judge.

Discussion

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant’s application below for extension of time to appeal was late by 2 months less a day. The delay was substantial, and the applicant’s explanation for the delay was not particularised (and not a good excuse even if true). Nevertheless, we have proceeded to consider the merits of the intended appeal.

16.  In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.  As mentioned above, in her submissions the applicant did not provide any particulars in support of her arguments or as to any specific errors in the Board’s decision or the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding she had not suffered any serious injury or harm and that she had only been attacked once by her husband’s creditors. The Board also found that internal relocation was viable. As such, the Board found that there was no real risk of harm in the event of refoulement. Such findings are within the province of the Board, and the court will not interfere with such assessments unless the applicant demonstrates that they should be impugned on public law grounds.

19.  The applicant has asserted that the Board failed to properly assess her credibility, but this is not to the point, as the Board broadly accepted her factual claims. The applicant asserted that the Board did not understand her circumstances in Vietnam, but has failed to show particulars to substantiate this bald allegation or identify any reviewable error in the Board’s reasoning or decision.

20.  Further, the applicant has failed to advance any proper intended grounds of appeal that show some error on the part of the Judge.

21.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

22.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons of 9 August 2021 is dismissed accordingly.