Re Luong Thi Thuy

CACV 368/2021

[2022] HKCA 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2021

(ON APPEAL FROM HCAL 188/2021)

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Before:  Hon Chu JA and Barma JA in Court

Date of Judgment:  25 February 2022

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 20 July 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 3 December 2020 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 25 May 2020 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of Vietnam.  She last arrived in Hong Kong illegally on 28 October 2019, and was arrested by the police on 5 November 2019 for unlawful entry and theft.  The applicant was convicted of theft on 5 December 2019.  Thereafter, she lodged a non-refoulement claim on 10 December 2019.   

3.The applicant’s claim was based on a fear of being harmed or killed by her creditors should she be refouled to Vietnam.  The details of the applicant’s claim have been summarised by the Judge at [5] and [6] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 25 May 2020 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.The applicant appealed to the Board.  However, before the hearing of the appeal, the applicant sent a letter to the Board on 28 October 2020, stating, inter alia, that “in Vietnam [her] mother has been seriously ill and nobody has offered her any care”.  In the letter, she asked the Board to “kindly help [her] so [her] case could be heard and sentenced, then [she] could return to Vietnam soon to look after [her] ailing mother”.  She further asked the Board to “let [her] have the result of rejection of [her] application soon” so that she could return to Vietnam.  The Board replied by letter on 19 November 2020, informing the applicant that unless she advised otherwise, it was to be presumed that she was applying to withdraw her appeal against the Director’s Decision, that she considered it safe to return to Vietnam and that upon her withdrawal her appeal would be dismissed and accordingly finally determined.  

6.The applicant did not reply to the Board’s letter, and as a result the Board dismissed her appeal on 3 December 2020 (i.e. the Board’s Decision).

The Judge’s decision

7.The applicant filed a Form 86 on 19 February 2021 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

8.In the applicant’s supporting affirmation, she deposed:

“Application for leave to apply for judicial review for my refoulement claims decision against the director of immigration.”

9.After summarising the facts and background of the case, giving due consideration to the decisions of the Director and the Board and hearing the applicant at the hearing, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [18] of the CALL-1 Form:

“15.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

‘41. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … s 37V(2)(b)  of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42.   The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if she can fulfil the requirements in sub-ss (a)  and (b)  thereunder.’

16.  At the hearing, the applicant said that she made the application to the Board because she wanted to return to Vietnam to look after her mother, who was seriously ill.  She knew that she had to withdraw her appeal before she could leave Hong Kong.  She did receive the Board’s letter.  But she did not understand the contents of the letter.  She did not respond to it.  Now, her mother had already passed away.  She did not want to go back to Vietnam because she is still unable to repay the debt and she is old and suffering from high blood pressure.  She is still afraid that the two creditors will harm her if she returned to Vietnam.

17.  It is thus quite clear that she wrote to the Board of her own accord, knowing that her application was to withdraw her appeal.  She might not be clear about the consequences of her application of withdrawal.  But those are the legal consequences following her application for withdrawal.  Whether she was clear about those consequences should not change the legal position if her decision was made on her own free will and it is a valid withdrawal of her appeal.

CONCLUSION

18.  The Board was correct to accept her application for withdrawal of her appeal.  As such, the Board becomes functus officio. There is no reasonable chance that her intended appeal would succeed.  Accordingly, I dismiss the applicant’s application for leave for judicial review the Board’s Decision.”

Grounds for appeal

10.In the Notice of Appeal filed on 28 July 2021, the applicant stated:

“The gravity of my circumstances have noted (sic) been weighed or realized by both Putative Respondent and Putative Interested Party while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

11.In her supporting affirmation filed on 28 July 2021, the applicant deposed, inter alia, that:

“…

I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review.

Additionally, I was informed that the Director of Immigration and the Adjudicator did not see the grounds to reverse their decisions.

I humbly request the Court to exercise its discretion to allow me to appeal.”

12.The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

13.The applicant lodged written submissions on 5 August 2021, where she repeated the dangers she would allegedly face upon return to Vietnam, namely threats to her life by her creditors, the problems with whom remain unresolved.  She contended that the Judge’s decision was “unsatisfactory” (without providing any reasons)  and asked this court to “give [her] a chance to seek justice and…get asylum in Hong Kong”.

Discussion

14.The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some errors on the part of the judge that would justify this court in intervening.

15.An unusual feature in this case was that the applicant had effectively applied to withdraw her appeal to the Board before the hearing actually took place.  In our view, from the statements made in her letter to the Board, it was clear that her intention was to apply for her claim to be disposed of so that she could return to Vietnam as soon as possible in order to take care of her ailing mother if necessary by dismissal.  It can also therefore be inferred that that despite the alleged threats faced by her from her creditors (which formed the basis of her non-refoulement claim), the applicant considered it viable for her to return to Vietnam.  Given that stance before the Board, the Judge was quite right to discuss her appeal for the reasons that he gave.

16.In any event, the grounds advanced by the applicant are vague and lack particulars, and should be rejected for this reason also.

17.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person