Re Nguyen Thi Luyen and Another

CACV 321/2022

[2022] HKCA 1838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 321 OF 2022

(ON APPEAL FROM HCAL NO 2064 OF 2018)

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J U D G M E N T

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

1.This is an appeal by the 2^nd and 3^rd applicants (collectively referred as “the applicants”) against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 26 July 2022, by which the Deputy Judge refused to grant extension of time and dismissed their application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2239).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 1 March 2018 dismissing the applicants’ appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 30 September 2015 and 5 December 2016 (collectively referred as “the Director’s Decisions”) rejecting their non-refoulement claims.

3.We heard the appeal on 24 November 2022.[1]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.Mr Dao Trong Truong (“Mr Dao”)[2] together with the 2^nd and 3^rd applicants, are a family of Vietnamese nationals.  Mr Dao is the 2^nd applicant’s husband and the 3^rd applicant is their daughter.  For convenience, we will refer to Mr Dao as “the Father”, the 2^nd applicant “the Mother” and the 3^rd applicant “the Daughter”.

5.The Father and Mother left Vietnam and entered Hong Kong on 19 November 2013.  They surrendered to the police on 24 November 2013.  The Father then lodged a non-refoulement claim on 11 December 2013.  On 13 December 2013, the Mother was voluntarily repatriated back to Vietnam.  Thereafter, on 6 October 2014, the Mother surrendered to the Immigration Department stating that she arrived at Hong Kong by hiding inside a container on 5 October 2014.  She then raised her non‑refoulement claim on 6 October 2014.

6.The Daughter left Vietnam on 20 March 2015 and claimed that she arrived at Hong Kong by boat on 23 March 2015 and surrendered to the Immigration Department on 16 April 2015.  She then raised her non-refoulement claim to the Immigration on 29 June 2015.

7.In essence, the applicants claimed that they were seeking non‑refoulement protection on the basis that they would be harmed or killed by the public officers in Vietnam and a money lender for the unpaid debts and they feared that the Daughter would be sold to China.  Factual details of the applicants’ claims were summarised by the Deputy Judge at [9] ‑ [21] of the Leave Decision.

8.By a Notice of Decision dated 30 September 2015, the Director rejected the applicants’ non-refoulement claims.  His decision covered all applicable grounds including torture risk^[3], BOR3 risk^[4] and persecution risk^[5].  Taking into account all relevant circumstances, the Director considered that their non-refoulement claims were not substantiated.  By a Notice of Further Decision dated 5 December 2016, the Director further rejected their non-refoulement claims on the ground of BOR2 risk[6].

9.The applicants then appealed against the Director’s Decisions to the Board and attended an oral hearing before the Board on 4 May 2017.  Having assessed the applicants’ evidence, the Board found that the evidence given by the applicants was so different in the material particulars that rendered their evidence unbelievable and unreliable.  Alternatively, even if their evidence were accepted, having assessed the evidence and the relevant Country of Origin information (“the COI”), the Board considered that the applicant had failed to substantiate their claims on the applicable grounds. The Board also considered that state protection and internal relocation would be available to the applicants.  Accordingly, the Board dismissed the applicants’ appeal and confirmed the Director’s Decisions.

The Leave Decision

10.On 27 September 2018, the applicants applied for extension of time and leave to apply for judicial review against the Board’s Decision.  By that time, they were late for almost four months in taking out their application.  In their supporting affirmation dated 27 September 2018, the applicants contended that they received the Board’s Decision late as it was sent to their former address, and sought to challenge the Board’s Decision on the grounds of procedural unfairness, selective consideration as to the evidence and improperly assessing their risk of harm as low.  Having considered the paper and materials before the Court, the Deputy Judge found it appropriate to determine their application on paper.

11.By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicant and dismissed their application for leave to the applicant to apply for judicial review.  The Deputy Judge first considered that the Board’s finding as to the applicants’ credibility and the dismissal of their claims based on their credibility were plainly wrong, as the Board failed to apply a lower standard of proof following the approach in Karanakaran [2000] Imm AR 27.  The Deputy Judge was of the view that the Board had failed to consider that the inconsistencies might be due to the memory differences between the applicants and had thus accorded improper weight to the discrepancies in their evidence.  For those reasons, the Deputy Judge rejected the Board’s dismissal of the applicants’ claims on the basis of their evidence being incredible.  See [32] ‑ [37] of the Leave Decision.

12.The Deputy Judge then proceeded to consider the Board’s assessment and findings of the applicants’ claims on the alternative basis (ie, assuming that the applicants’ evidence be accepted).  On this basis, the Deputy Judge considered that the applicants’ intended grounds of judicial review were unmeritorious, as there was no error of law or fact or procedural unfairness in the Board’s assessment of the evidence and findings as to the applicants’ risks on the alternative basis.  The Deputy Judge also observed that the Board had considered all the relevant evidence and the COI in making its decision and there was no procedural unfairness or Wednesbury unreasonableness in its assessment.  Accordingly, as there was no basis to intervene the Board’s Decision on the alternative basis, the Deputy Judge refused to grant extension of time to the applicants and dismissed their application for leave to apply for judicial review.  See [38] ‑ [44] of the Leave Decision.

The Appeal

13.On 15 August 2022, the applicants filed a Notice of Appeal in support of their appeal against the Leave Decision.  In the Notice of Appeal, they only stated that they wanted to challenge the Leave Decision, without giving any ground in support.

14.Contrary to the directions made by the Registrar of Civil Appeals on 30 August 2022 and the Notice of Hearing dated 14 September 2022, the applicants did not lodge their submissions as required on or before 11 October 2022.  On that basis, by the directions of this Court on 12 October 2022, the applicants were deemed to have waived their right to have an oral hearing and accordingly, their appeal would be dealt with on paper.

15.Subsequently, on 17 October 2022, the applicants filed their written submissions out of time.  By the directions of Au JA on 25 October 2022, the applicants’ oral hearing on 24 November 2022 was restored.

16.In their written submissions, the applicants only repeated the factual basis and procedural history of their non-refoulement claims and claimed that the Director and the Board made errors in their decisions.  They further contended that they wanted to appeal to the Court of Final Appeal as many of their friends are staying in the Castle Peak Bay Immigration Centre and their cases were dismissed, and that no one wanted to return to their home countries.

17.We heard the appeal on 24 November 2022.  A Vietnamese interpreter was present to provide language assistance.  During the hearing, the Mother confirmed that she had nothing further to add to her written materials and urged the Court to have compassion on her family.  The Daughter also confirmed that she had nothing further to add to her written materials.

Discussion

18.The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.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 the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

20.In our view, the applicants’ appeal plainly lacks merit and must fail.  First, all the matters raised by the applicants were bare and vague allegations without any specific particulars.  General assertions of their fear if refouled are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  Although they claimed that the decisions of the Director and the Board were wrong, they did not give any elaboration or specific particulars in support of their allegations.  More importantly, they did not identify any error in the Leave Decision.  Accordingly, their arguments are not proper grounds of appeal and their appeal must fail on this basis alone.

21.It is also clear that the applicants’ submissions in relation to bringing their appeal to the Court of Final Appeal are wholly misplaced, as the present appeal only concerns the applicants’ appeal to this Court against the Leave Decision.  In this respect, it is unclear how the alleged cases of the applicants’ friends have any bearing or relevance to the applicants’ appeal.  Clearly, their submissions are wholly untenable.

22.For completeness, we noted that during the proceedings before the Board, the Daughter was a minor without legal representation.[7]  In relation to non-refoulement claims made by or on behalf of a minor, the Court’s approach is set out in Re Jasvir Singh [2021] HKCA 53 at [30] - [33] and Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 971.

23.In this respect, although the Daughter was a minor at the material time and her position should be considered separately from the Mother, unlike the situation in Fabio Arlyn Timogan where there were materials specific to the minors’ claim which had not been advanced or adequately advanced to the Board[8], in the present case, there is no evidence that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to the Daughter but were not advanced to the Board or not considered by it because of the lack of legal representation before the Board.  In particular, the Board gave detailed consideration to the Daugher’s own case in its decision on the grounds alleged before it: see eg, [60] and [69] of the Board’s Decision.

24.As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the Court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the Court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  This Court is satisfied that this is the situation in respect of the Daughter’s claim in the present case.

25.For the above reasons, the 2^nd and 3^rd applicants’ appeal has no merit and we dismiss their appeal.

The 2^nd and 3^rd applicants acting in person