NGUYEN THI LO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 246/2023, [2023] HKCA 1141

On Appeal From [2022] HKCFI 3559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 246 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 781 OF 2022)

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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 extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 6 December 2022 dismissing the applicant’s application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 10 August 2022. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 18 August 2021 rejecting her non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1972. Having entered Hong Kong illegally in July 2020, she was arrested by the Hong Kong police on 13 July 2020. She lodged a non-refoulement claim by written signification on 5 August 2020, on the ground that if she returned to Vietnam, she would be harmed or killed by a creditor because she had been unable to repay the loan. The details of her claim are set out at [26] to [43] of the Board’s decision.

3.  The applicant was arrested in January 2021 for taking up employment or establishing or joining in any business while being a person in respect of whom a removal order was in force. In February 2021 the applicant notified the Immigration Department in writing that she withdrew her non-refoulement claim. On 10 March 2021 she was sentenced to 14 months’ imprisonment for the aforesaid offences. In April and June 2021 she applied in writing to have her non-refoulement claim reinstated. The Director decided to allow her claim to be reinstated on 16 July 2021, which was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4] By a notice of decision dated 18 August 2021, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 27 April 2022, at which the applicant gave evidence and answered the Board’s questions. The Board noted that the problem the applicant faced arose purely from private matters and that the State appeared both willing and able to offer effective protection, so that there was no persecution or torture risk. The Board considered that the previous incidents of assault referred to by the applicant did not attain the requisite level of severity for BOR 3 risk. The Board also found that the applicant had failed to establish a real risk under BOR 2 if she returned to Vietnam. Accordingly, in its decision dated 10 August 2022, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

5.  On 17 August 2022, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The applicant stated that if she returned to Vietnam, her life would be seriously threatened because the creditor and the gangsters in Vietnam were cruel and violent and would disregard the law and be willing to kill people out of anger. She also stated that it would be possible for the creditor to find out her new residence even if she relocated within Vietnam. She concluded that the Board’s decision was “unsafe” and that it was wrong for the Board to rule that the applicant was “unreliable”.

6.  On 30 September 2022, however, the applicant filed a second affirmation in the court below, stating that it was safe for her to return to her country, that she would like to be repatriated as soon as possible, that she wished to withdraw and cancel the case out of her own free will, and that she fully understood the consequences of withdrawing the Form 86 including that it would bring the proceedings to an end and the Board’s decision would remain in force.

7.  Having regard to the applicant’s stance, on 6 December 2022, the Judge, based on the documents alone, issued his decision dismissing the application for leave to apply for judicial review.

8.  Notwithstanding that she had herself decided to withdraw her application, on 8 May 2023 the applicant filed a summons in the Court of First Instance seeking an extension of time to appeal against the Judge’s order of 6 December 2022. In the supporting affirmation the applicant said there was a “good ground of appeal” that had not necessarily been considered, but did not explain what it was. The summons was dismissed in the Judge’s decision of 6 June 2023.

The renewed application before this Court

9.  By summons filed in this court on 6 July 2023, the applicant made another application for extension of time to appeal against the decision of the Judge dated 6 December 2022 refusing to grant leave for judicial review. In her supporting affirmation, she said that the decision of the Judge had been reached unfairly without allowing her an opportunity to clarify her case and the situation in her country, and that the merits of this ground constituted sufficient reason for the court to allow her to appeal out of time. In a “Statement” lodged together with her summons and affirmation, the applicant stated that it was “unsatisfactory” for the Judge to rule that she had no chance of success in reviewing the Board’s decision. She repeated that if she returned to Vietnam, her life would be seriously threatened, because the creditors and gangsters in Vietnam were cruel and violent, and willing to kill people out of anger and ferocity, and that it was not feasible for her to relocate within Vietnam because her health was not good, she was not an active person, and there was no guarantee she would be able to adapt to the new place and find a job. It was stated that due to the nationwide network of gangsters and their clandestine connections with the government and the police, it would be quite possible for the creditor to find out her new residence. She also claimed that the Immigration Department did not consider her human rights.

10.  The applicant did not lodge any further written submissions in accordance with the directions of the Registrar of Civil Appeals dated 6 July 2023. Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  In our view, the present application is wholly misconceived. The Judge’s decision to dismiss the application for leave to apply for judicial review was squarely based on the applicant’s own affirmation indicating that she was withdrawing her Form 86 with full knowledge of the consequences. The applicant has not retracted that affirmation and has failed to demonstrate why her application for leave for judicial review should not be dismissed given her own stance. There was nothing irregular in the circumstances for the Judge to dismiss the application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, §19.

12.  In the circumstances, the allegation that the Judge reached his decision unfairly without allowing the applicant an opportunity to clarify her case and the situation in her country has no basis whatsoever. We do not see any prospect of success in the intended appeal. The applicant’s summons for an extension of time to appeal is accordingly dismissed.