Re v. Thi Hue

CAMP 150/2022

[2022] HKCA 1162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 150 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1361 OF 2018)

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Before:  Hon Chu and M Poon JJA in Court

Date of Judgment: 12 August 2022

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 4 November 2020[1] refusing to grant an extension of time and dismissing her application for leave to apply for judicial review.

2.The applicant has filed a supporting affirmation together with a written statement to support her application.  She has not lodged any written submission despite the directions of the Registrar of Civil Appeals.  

3.Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.The applicant is a national of Vietnam aged 52.  She entered Hong Kong illegally and was arrested by the police on 1 March 2014.  She later raised a non-refoulement claim based on her fear of being harmed or killed by her creditor and his followers due to her inability to repay her debt.  The details of the applicant’s claim were set out in the decision of the Director at [8].  We will not repeat them.     

6.By his decision dated 16 August 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

7.The applicant appealed the Director’s decision to the Board.  The Board held an oral hearing on 8 December 2017, during which the applicant gave evidence and answered questions from the Board. By its decision dated 16 January 2018, the Board dismissed the appeal.  The Board found, on the applicant’s case, her creditor never meant to kill her and had not inflicted severe pain or suffering or serious injuries on her, and that the applicant’s problem was a pure private dispute with nothing to do with the Vietnamese government or authorities.  The Board further held that the availability of internal relocation alternatives would further lower or negate the level of risk that the applicant may face.  The Board concluded that the claim failed on all applicable grounds.

8.On 12 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She did not put forward any specific ground for seeking relief.  She merely stated in her affirmation that the Board ignored her problem and the realities in Vietnam, and the decision was unfair.

9.Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires 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 unless the court considers there is good reason to extend the time for making the application.  The three-month period for the applicant to make the application for leave to apply for judicial review expired on 16 April 2018.  The applicant’s application was late by almost three months. 

10.The Judge considered the application on paper.  By a Form CALL-1 dated 4 November 2020, he refused to grant an extension of time and dismiss the application for the reasons set out in [18] to [23] as follows:

“18. In the present case, the Board did not take issue with the applicant’s claimed primary events. It only disagreed with her on the assessment of risk flowing from the claimed events. It rejected the applicant’s appeal/ petition based on its assessment of risk she would face, if refouled. Further and in any event, the Board found that internal relocation is a viable and reasonable option for her.

19. As mentioned above, assessment of risk of harm and availability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

20. The Form 86 and affirmation of the applicant did not contain any particulars or viable grounds to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. The complaints that the Board ignored her debt and realities in Vietnam, which have been duly considered, are plainly wrong. There is no reasonably arguable basis to challenge the findings of the Board.

21. The Board has taken a most favourable view on credibility of the applicant. Her delay in making her claim for protection could have been viewed adversely on her credibility. Her conduct was inconsistent with someone in genuine fear for her life and safety.

22. Even on the applicant’s own account, the past ill treatment was of low intensity and frequency. It did not reach the level of severity required to constitute torture or CIDTP and is not indicative of real risk of harm caused by her creditor. She did not report the matter to the local police or authorities. There cannot be any substantial grounds for believing that she would be at real risk of any type of proscribed harm, if refouled.

23. 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 either of them.  Nor do I see any failure on their part to apply high standards of fairness.”

11.Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

12.By a summons filed on 7 January 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge P Li dealt with the application on paper, and by his decision handed down on 11 November 2021[6] refused the application. 

13.On 12 May 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

14.In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will 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. 

15.The applicant was about seven weeks late when she made the application for extension of time.  She explained the delay on the basis that the Judge’s order was written in English which she did not understand, and she needed to wait till her friend had time to help her to make the application.  While we accept that the applicant may have difficulty understanding English, we do not find the explanation entirely satisfactory given that seven weeks is a significant delay and a litigant is under a duty to act expeditiously.  Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.    

16.In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Relevantly, 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.  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.

17.The summons did not contain any ground for the application.  The affirmation complained that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and her situation in her country.  She also asserted that the merits of this ground of appeal constitute sufficient reason for the Court to exercise its discretion in allowing the appeal out of time.    

18.The written statement stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given she does not enjoy good health and is not an active person.  It is said that she will be disadvantaged in the labour market and cannot make a living to support herself.  It also complained that the Director did not consider the applicant’s human rights.  Finally, it said that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, her life will be in danger.

19.For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no particulars as to in what way the Judge’s decision is said to be unfair.  It is the duty of the applicant to set out in his Form 86 her grounds for seeking relief together with the supporting particulars.  As the applicant did not provide any ground for seeking relief, and her Form 86 did not request for an oral hearing, the Judge was fully entitled to deal with the application without holding an oral hearing. 

(2)  Assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.  The assertion of risks to harm in the written statement has not proper factual foundation. 

(3)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.        

20.We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.           

21.As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 May 2022. 

The applicant, unrepresented, acted in person.

[1] [2020] HKCFI 2699

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2021] HKCFI 3303