Re Pham Thi Quyen

CACV 372/2020

[2021] HKCA 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 372 OF 2020

(ON APPEAL FROM HCAL NO. 561 OF 2018)

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Before:  Hon Yeung VP and B Chu J in Court

Date of Hearing:  22 February 2021

Date of Judgment:  1 March 2021

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) made on 4 August 2020 in HCAL 561/2018 refusing to allow an extension of time for the application for leave to apply for judicial review of the decision of Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 August 2017 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 26 October 2016.

Background

2.The applicant is a national of Vietnam who entered Hong Kong illegally on 5 September 2014 and surrendered to the Immigration Department on 10 September 2014.  She then raised a non-refoulement claim on the basis that if she were to return to Vietnam she would be harmed or killed by her creditor for failing to repay a loan.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1776. 

3.By the Notice of Decision dated 26 October 2016, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.The applicant appealed to the Board and the appeal was dismissed on paper by its decision made on 8 August 2017.  For the reasons stated in [48] and [70] of the decision, the Board accepted the applicant’s claim of being pursued by her creditor for repayment of her loan, but found that even on her own case she had never been severely ill-treated other than being verbally threatened, and that with state/police protection available as well as reasonable internal relocation options for her to move safely to other parts of Vietnam to re-establish her life and work, she no risk of being harmed by her creditor.  For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

5.On 6 April 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  She did not provide any grounds for seeking relief and in her supporting affirmation, she merely repeated her claim that if she were to return to Vietnam she would be killed by her creditor without putting forward any proper or valid grounds to support her intended challenge. 

6.By then the applicant was late with her application, as Order 53 rule 4(1) of the Rules of the High Court (Cap. 4A) requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  As the last day of the three-month period for her to file her Form 86 fell on 8 December 2017 after discounting the month of August 2017 for the court vacation, the applicant was almost 4 months late with her application.

7.The applicant did not request an oral hearing and the application was disposed on paper.  By the CALL-1 Form of 4 August 2020, the application for an extension of time for leave to apply for judicial review was refused.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave at [18] to [22] of the CALL-1 Form:

“18.  In the Applicant’s case, a delay of 4 months must be considered as significant or substantial, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address and has never been returned through undelivered mail, I am unable to see any good reason for her serious delay.

19.  As for the merits of her intended application, as noted above the Applicant also failed to put forward any proper or valid ground in support, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I do not find any reasonably arguable basis for her to challenge the finding of the Board.

20.  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.

21.  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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  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 Applicant’s claim.”

The Appeal

8.Following the Court of Final Appeal cases H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (“H and AH”), the Court of Final Appeal held that it is not appropriate to express time limit of judicial review “as a single fixed period of three months” [H and AH at paragraph 37(1)] and it further decided that an order refusing an extension of time and dismissing an application for leave to issue judicial review was appealable as of right [H and AH paragraph 41].  Pursuant to Order 53, rule 4 of the Rules of the High Court (Cap. 4A), the applicant filed the Notice of Appeal on 14 August 2020.  Her grounds of appeal are summarized as follows:

(1)  The Judge was wrong in his decision in coming to the conclusion that the Adjudicator did not err in her decision.

(2)  The Adjudicator decided that she was not a credible witness due to discrepancies in various statements and records of interview and her non-refoulement protection claim was dismissed without an oral hearing.

(3)  There was a lack of clarity and transparency in the trial bundle.  The Judge dismissed her claim because “it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly, he was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood it’s cont.”  This is an overstatement as the bundle was only interpreted to her whenever the Adjudicator found it necessary to be referred to certain paragraphs or document.  She only understood those contents which were interpreted to her and she had no means to find out what the rest was.  The bundle was never read to her prior to the oral haring and she was asked to pick it up with limited assistance (as Duty Lawyer has refused to provide further assistance).  By the fact that she speaks little English and can barely read English, it was unfair and detrimental to expect her to prepare for the hearing.

(4)  As she has to rely heavily on the interpreter, she did not have the means and could not find out if the interpretation was correct or not.  It has proven so far that her words have always been wrongly interpreted and a lot of words were simply lost in translations.  As such the Adjudicator had wrongly exercised her case management power in deciding against her on the issue credibility.  She does not want to clarify further because she did not have anyone to seek legal advice from and also because she has reached a point of frustration in having to explain herself for things that she had never said.

9.In compliance with the direction given by Master Tsui on 24 November 2020, the applicant lodged her written submissions on 18 January 2021.  In her 8-page long written submissions, she reiterated the background of her case and her appeal before the Board.  For the purpose of the present appeal, the applicant raised various grounds of appeal at [15] to [32] of her written submissions.  Upon careful reading of the grounds, we found that some of the grounds of complaints against the Board are unrelated to her case and not covered in the Board’s decision.  The grounds related to her appeal are essentially as follows:

(1)  The Board failed to evaluate all the evidence submitted by her and did not provide sufficient reasons to justify its findings.

(2)  The Board failed to consider or adequately apply relevant and up-to-date COI in determining her claim which is procedurally unfair.

(3)  The applicant did not read and write in Chinese and English.  The Board’s decision was in Chinese and the Judge’s decision was in English.  She did not have any idea on the time limit in filing Form 86 and no one could help her in this matter.  She did not have money to seek advice from solicitor or to prepare Form 86 and the supporting affirmation.

(4)  She was late in filing Form 86 because her family was seriously ill at that time and she needed to communicate with the hospital urgently.  She was mentally upset and thus delayed the matter.

(5)  Her enemy is powerful and may locate her anywhere in Vietnam.  This is pertinent as to the availability of state protection and the possibility of internal relocation and decision can only be made by consulting these sources of information.

(6)  The Board’s decision did not meet the high standard of fairness and the Judge’s decision did not provide reason as to the relevance of the Country of origin information (“COI”) considered and adopted by the Board.

(7)  The court failed to discharge its duty to comprehensively consider the lawfulness or fairness of the decision making which is its role in the judicial review.

(8)  All the points raised by the applicant should be considered in the objective assessment to prevent refoulement to a risk state.  The matters are of significance as they are pertinent to the lives and freedom of people in Hong Kong.

(9)  There are fundamental errors going to the heart of the appropriate determination of protection claims in Hong Kong.  It is therefore of public importance so as to justify the consideration of the Court of Appeal.   

10.We heard the appeal on 22 February 2021. 

General Principles

11.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

12.We would first deal with the grounds of appeal set out in the Notice of Appeal.

13.Ground 1 is a vague and general assertion.  The applicant did not pinpoint or elaborate which part of the Judge’s decision was wrong and it was nothing more than the applicant’s mere disagreement with the Judge’s decision in endorsing the Board’s decision and it is not a valid ground of appeal.

14.Grounds 2 and 4 can be dealt with together.  We found the complaints raised were totally misconceived and inconsistent with what actually happened in the applicant’s case.  We note from the Board’s decision that the Adjudicator had considered and disposed the applicant’s appeal/petition on paper in which the Adjudicator did not take issue with the applicant’s credibility and had in fact accepted her claim that she was pursued by her creditor for repayment of loan.  The Board found that even on her own case that she only received verbal threats and was slapped on her face once, and that state/police protection and internal relocation are available.  Her claim for non-refoulement protection was therefore rejected.  The complaints and allegations in Grounds 2 and 4 are simply unfounded and cannot stand.

15.Similarly, on ground 3, the applicant disagreed with the reason for refusing her application by quoting a passage that appeared to be some comments made by the court.  However, the quoted passage was not part of the Judge’s decision and the contents were totally unrelated to the applicant’s case.  Further, her complaint in relation to her difficulty in preparing for the court hearing due to the lack of interpretation of the bundle was misconceived as her application was disposed on paper.

16.Turning to the grounds of complaints as listed out in the written submissions, with the legal principles stated in [11] of this judgment, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant.  In our judgment, the grounds against the Judge’s decision are vague and lack particulars, and afford no proper basis for this Court to interfere with the Judge’s decision.

17.After careful review of the papers available, we do not find any error of law or procedural fairness or irregularities in the Board’s decision, nor any failure on its part to apply high standard of fairness in its consideration and assessment of the applicant’s claim.  We see no merit in the applicant’s case.

18.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acted in person.