TRINH THUY HUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 328/2023, [2024] HKCA 1090

On appeal from [2023] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 328 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2068 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 20 October 2023, the applicant took out a summons (“Summons”) to apply for leave to appeal, out of time, against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 31 August 2023 refusing to extend time for her to appeal against an earlier order of the Judge dated 30 June 2023[1] (“the Order”) refusing leave to apply for judicial review. In support of the Summons, she also filed an affirmation (“Affirmation”) and a document titled ‘STATEMENT’ (“Statement”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 5 July 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 July 2018 rejecting her non-refoulement claim.

3.  Having considered the papers, we are of the view that it is appropriate to determine this application on paper without a hearing.

Background

4.  The applicant is a Vietnamese national. She entered Hong Kong illegally on 31 July 2016. On 1 August 2016, she was arrested by the police. On 14 February 2017, 27 February 2017, 9 March 2017 and 24 March 2017 respectively, she lodged a non‑refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Binh due to an outstanding debt. Details of her claim were summarised by the Judge at §§3-4 of the CALL-1 Form.

5.  By a Notice of Decision dated 30 July 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds: risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5] (“the Director’s Decision”).

6.  The applicant appealed the Director’s Decision to the Board. The Board conducted an oral hearing during which she was legally represented. On 5 July 2019, the Board dismissed her appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§8-9 of the CALL-1 Form:

“[8] The Board recapped the applicant’s claim [3]-[17] and considered her oral testimonies [18]-[27]. It also examined the country of origin information (“COI”) [28]. Having considered all the information, the Board made the following findings. It found that the applicant failed to produce any documents in support of her claims, such as the loan agreement, her shipping business, her vessel or the medical reports [35]. It also noted the inconsistencies in her written statement and oral testimonies [36]-[40]. Meanwhile, it found that it was unreasonable for the creditor to lend the sum to the applicant and her husband who had no prior experience in shipping industry [42]-[43]. Further, the COI showed that state protection and internal relocation would be available to the applicant [55]-[62].

[9] For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.”

7.  On 19 July 2019, the applicant filed a Form 86 to apply for leave for judicial review of the Board’s Decision. No specific ground of review was given in the Form 86 or in the applicant’s supporting affirmation of the same date.

The Judge’s decision

8.  On 30 June 2023, the Judge refused to grant leave to apply for judicial review, for the following reasons:

“[12] 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).

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

[14] 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.’

[15] The Board had, for the reasons given above, rejected the applicant’s evidence in support of her claim.

[16] There is no valid ground from the applicant to challenge the Board’s Decision.

[17] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

9.  On 14 July 2023, the applicant applied by summons and affirmation for extension of time to appeal against the Order. On 31 August 2023, the Judge refused the application, holding that the applicant had not been able to raise any reasons to challenge the Board’s Decision, and there was no realistic prospect of success in her intended appeal[6].

This application

10.  In the present Summons to the Court of Appeal, the applicant applied for leave to appeal against the Judge’s order of 31 August 2023.

11.  In her Affirmation, she stated that the Decision made by the High Court was “reached unfairly without allowing [the applicant] an opportunity to clarify [her] case and situation in [her] country … [the applicant] believes that merits of this ground of appeal constitute sufficient justification for the Court to exercise its discretion in allowing this appeal out of time”.

12.  In her Statement, the applicant regurgitated the background (as set out above) and repeated that if returned to Vietnam her life would be in danger and therefore, she should be granted asylum in Hong Kong:

“[4] It was unsatisfactory that the Court of First Instance ruled in the judgment of Case No. HCA 2068/2019 that I had no chance of success in reviewing the Torture Claim Appeal Board’s decision and Director of Immigration’s decision.

[5] If I return to Vietnam, my life will be seriously threatened, probably even dead, because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people to satisfy their anger and ferocity. I will be tortured, beaten, or even killed if the gangsters are too angry and cannot control their emotions and their behavior.

[6] The Director of Immigration suggested that I change another location to live to avoid pursuit of the creditor, but that is completely unfeasible. There will be many difficulties and obstacles that I will have to face in the new location. My health is not good, I am also not an active person, is another factor that may disadvantage me in the labour market. There is no guarantee that I will be able to adapt to the new place and find a job to earn money to support myself.

[7] Moreover, with the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditors and gangsters to find out my new residence. So, I can be very dangers [sic] if I tries to escape to another place in Vietnam.

[8] At the same time, I am also being wanted by the Vietnamese police for disturbing public order. I worried that I would be brutally tortured by the Vietnamese police if they caught me.

[9] The problem regarding my appeal is that the Immigration Department did not consider my human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.”

13.  In gist, the applicant complained that the Board and the Director had failed to take into account and/or give proper weight to relevant considerations and materials, and hence their decisions were wrong. Neither in the Affirmation nor the Statement has the applicant explained or attempted to justify why her application to appeal was late.

14.  The applicant for the very first time, at paragraph 8 of her Statement, additionally claims that she fears that she could be brutally tortured by the Vietnamese police as she is wanted in Vietnam for disturbing the public order. This was not a matter raised to the Director, the Board, or the Judge below.

15.  The Board had no duty to make investigation into it without the applicant raising it and it should not be considered by this Court at this stage. See Nupur Mst v Director of Immigration [2018] HKCA 524, §14(3) to (5):

“(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.”

16.  Furthermore, the applicant has not supplied this court with any further information regarding this new allegation save for her bare statement, nor has she attempted to seek leave to adduce new evidence. There is no basis to consider this new allegation.

Discussion

17.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we will treat the present application as a renewed application for extension of time to appeal against the Order.

18.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

19.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

20.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst at §14. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

21.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022, §13. The applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars. No error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

22.  The applicant has failed to identify any error in the Judge’s decision of 30 June 2023, or raise any viable ground of appeal against the Order.

23.  There is no prospect of success in the applicant’s intended appeal. It is thus futile to grant her any extension of time to appeal against the Order.

Disposition

24.  The application for extension of time to appeal is refused, and the applicant’s Summons is dismissed.