Le Thi Huong v. Torture Claims Appeal Board / Non-refoulement Claims Petiton Office

CAMP 215/2021

[2021] HKCA 1509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 215 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1129 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submission: 21 July 2021

Date of Judgment:  26 October 2021

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JUDGMENT

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

1.By a summons dated 11 June 2021, the Applicant applied to this Court for “leave to appeal” against the decision dated 2 June 2021 made by Deputy High Court Judge To refusing the Applicant’s application for an extension of time to appeal. The intended appeal was against the decision dated 23 March 2021 made by Deputy High Court Judge C.P. Pang refusing to grant leave to the Applicant to apply for judicial review.

2.Having considered the Applicant’s summons and affirmation dated 11 June 2021 and the written submissions dated 21 July 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of Vietnam.  She arrived in Hong Kong on 16 December 2013 and was permitted to remain until 20 December 2013 as a visitor.  She overstayed and remained in Hong Kong unlawfully.  On 30 December 2013, she surrendered herself to the Immigration Department and lodged a non-refoulement claim, based on an alleged fear that she and her husband would be prosecuted and harmed by the police in Vietnam arising out of a traffic incident that occurred on 9 December 2013.  Details of the Applicant’s claim have been summarised by Deputy HC Judge Pang at §§1-3 of the CALL-1 Form ([2021] HKCFI 644).

4.By a Notice of Decision dated 22 February 2017, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”).  On 9 March 2018, the Board heard the appeal.

6.On 8 May 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found that the Applicant had exaggerated her claim of harm by the police.  The Board reasoned that the claim only related to a single traffic incident, and neither the Applicant nor her husband was harmed as a result.  The police even allowed them to leave the scene of the incident notwithstanding that the police had requested her husband to go to the police station with them.  Neither the Applicant nor her husband had previously had any difficulties with the police or other authorities in Vietnam and they were able to obtain their passports and leave Vietnam without difficulty to come to Hong Kong.  The Board found that her claim of harm was not credible.  There were no substantial grounds to believe that she would face a real risk of being subjected to torture or CIDTP or persecution if she returned to Vietnam.  While the Board considered that it was unnecessary to look at relocation options, it in any event found that she could reasonably relocate elsewhere in Vietnam if she feared harm in her home area.

7.On 19 June 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.On 23 March 2021, Deputy HC Judge Pang refused to grant leave to the Applicant to apply for judicial review.

9.Deputy HC Judge Pang was not satisfied that there was any prospect of success in the Applicant’s intended application for judicial review.  His reasons were set out at §§13-20 of Form CALL-1:

“13. In the present case, the Board did not take issue with the applicant’s asserted primary facts about the traffic incident and the summons issued to her husband. It however disagreed with the applicant on the assessment of risk flowing from such events and found that the applicant exaggerated her claims about her fear of harm by the police in Vietnam. It did not accept that her claims to fear harm are credible. Based on its findings, there would be no basis in support of the claim. In any event, the Board considered that she could reasonably relocate to elsewhere in Vietnam if she feared harm in her home area.

14. As explained above, the assessments of evidence, risk of harm, state protection 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.

15. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. The bare general assertion that the local authority will put all the blame on her shoulder is vague and unsupported by evidence. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16. Indeed, the applicant’s claims of fear of harm at the hands of the local police in Vietnam (because of a minor traffic offence and a summons for his husband to attend a police station) are far-fetched and unsupported by evidence. The evidence in the present case can hardly establish that the applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled.

17. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

18. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

19. 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.

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

DEPUTY HC JUDGE TO’S EXTENSION DECISION

10.Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against Deputy HC Judge Pang’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the Applicant with the 14-day period.

11.On 14 April 2021, the Applicant made an application for an extension of time to appeal Deputy HC Judge Pang’s order refusing to grant leave to apply for judicial review.

12.An oral hearing was held before Deputy HC Judge To on 18 May 2021 to clarify the Applicant’s reasons for the delay and her grounds of appeal.

13.Citing Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office [2020] HKCA 844, Deputy HC Judge To held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court would take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see [2021] HKCFI 1490, §4).

14.Deputy HC Judge To found that the delay of one week was not serious even though the Applicant had provided no valid explanation for her delay (§6).  However, he concluded that there was no prospect of success in the Applicant’s intended application for judicial review because the Applicant stated no grounds for judicial review (§§11-12).  The Board and Director would suffer prejudice if an extension of time was granted.  Also, the application did not raise any questions of general public importance (§13).

15.Accordingly, Deputy HC Judge To refused to extend time for the Applicant’s appeal and dismissed her application.

THIS APPLICATION

16.By summons dated 11 June 2021, the Applicant applied for leave to appeal Deputy HC Judge To’s order.

17.In her supporting affirmation, the Applicant stated that she did not have money to seek advice on procedure and could not approach the High Court’s Resource Centre for Unrepresented Litigants for advice.  She added that there was a good ground of appeal without providing any particulars of her ground of appeal, and in light of the merits of her application, she should be granted an extension of time to appeal.

18.In her 5-page written submissions dated 21 July 2021, the Applicant makes generic submissions on the general principles of law relating to non-refoulement claims.  She also claims that the Board did not act in a procedurally fair manner in dealing with her application and failed to assess her credibility correctly.

DISCUSSION

19.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3–8, we would treat the present application as a renewed application for extension of time to appeal.

20.In deciding whether to extend time to appeal, this 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.

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

22.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

23.As the length of the delay is 8 days, we agree with Deputy HC Judge To that the delay should not be fatal despite the Applicant having no valid reasons for the delay.

24.Having said that, this Court will consider the Applicant’s chances of the appeal succeeding if an extension of time is granted.

25.The Applicant’s allegation about her inability to seek advice on the appeal procedure due to insufficient funds is nothing more than a bare assertion.  Further, the Applicant’s allegation that she could not approach the High Court’s Resource Centre for Unrepresented Litigants for advice is implausible.

26.The Applicant has not shown any errors in Deputy HC Judge Pang’s decision in refusing to grant leave to apply for judicial review, or viable grounds of appeal in her summons, affirmation, or written submissions.

27.Having carefully considered the documents before us, we consider that there is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

28.The application for extension of time to appeal is refused, and the Applicant’s summons of 11 June 2021 is dismissed.

The Applicant, acting in person