Re Nguyen Thi Nam

CAMP 163/2022

[2022] HKCA 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 163 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2807 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 Lung (“the Judge”) dated 21 March 2022[1] refusing to give her 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 decisions of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.The applicant is a national of Vietnam aged 59.  She entered Hong Kong illegally and was arrested by the police on 23 October 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 [6].  We will not repeat them.     

6.By two decisions dated 1 September 2016 and 24 February 2017, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, while the further decision decides on the BOR 2 risk^[5] ground.

7.The applicant appealed the Director’s decision to the Board.  The Board held an oral hearing on 7 September 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 29 November 2018, the Board dismissed the appeal.  The Board found the applicant’s case inherently implausible, and rejected her evidence in its entirely.  The Board considered that, even on the applicant’s case, the creditor 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 state protection and 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 7 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  She put forward the following grounds for seeking relief: 

(1)  The Board failed to take an overall view of her case, and had was selective and fault-finding in assessing her evidence.

(2)  The Board under-estimated the risk of harm she faced.  She was badly assaulted and was hospitalised.  The degree of harm she suffered satisfied the minimum degree of severity under the BOR 3 risk ground.

(3)  The Board was biased against her in finding her evidence ridiculous and in deciding against her under the applicable grounds.       

9.The Judge considered the application on paper.  By a Form CALL-1 dated 21 March 2022, he refused the application for the reasons set out in [9] to [13].  Principally, the Judge held that the applicant failed to advance arguable reasons to challenge the finding of facts made by the Board.  It was pointed out that the Board was entitled to assess the country conditions by consulting the country of origin information, and to conclude that state protection was reasonably available. The Judge also pointed out that the applicant must satisfy the legal requirements under the applicable grounds in order to be eligible to non-refoulement protection.  The Judge concluded that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the applicant’s intended judicial review has no prospect of success.  

10.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.  In light of the public health situation due to the pandemic, the High Court registry was closed from 7 March to 11 April 2022.  By reason of section 71(1A)(a) of the Interpretation and General Clauses Ordinance, Cap. 1, the 14-day period for the applicant to lodge an appeal expired on 12 April 2022 when the High Court registry re-opened.    

11.By a summons filed on 13 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 13 May 2022[6] refused the application. 

12.On 24 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.

13.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. 

14.The applicant was one day late, which is a minor delay.  She explained that on 12 April 2022 she was not able to obtain a ticket to lodge the appeal papers.  We are prepared to accept the explanation.  We turn next to consider the prospect of the intended appeal.

15.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.

16.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.      

17.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 may not be able to find a job to support herself.  It also said that with their nationwide network and connections with the police and government officials, her creditor and the gangsters can find her no matter where she goes.  The applicant further complained that the Director did not consider her 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. 

18.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.  As the 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 applicant’s evidence not credible, that even on the applicant’s own case, the risk of harm faced by her did not satisfy the requirements for granting non-refoulement protection, and that internal relocation alternatives were available.  The applicant’s complaints against the Board’s decision are no more than general assertions with no particulars, and do not provide proper basis for the Court to grant relief.  In the circumstances and in light of the Board’s rejection of her claim, the applicant’s assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.   

(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.        

19.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.           

20.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 24 May 2022. 

The applicant, unrepresented, acted in person.

[1] [2022] HKCFI 757

[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] [2022] HKCFI 1284