Nguyen Thi Dung v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 375/2022

[2022] HKCA 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 375 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1989 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  15 December 2022

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J U D G M E N T

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

1.On 26 September 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 20 September 2022 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 14 January 2022 (“the Order”) refusing to grant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 July 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 August 2016 and 25 January 2017 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents, 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, Cap 4A.

BACKGROUND

4.The Applicant is a national of Vietnam. She entered Hong Kong illegally on 7 August 2015, and was arrested by the Hong Kong police on 12 August 2015. She lodged a non-refoulement claim on 30 November 2015 alleging that, if refouled, she would be harmed or killed by her husband and some gangsters to whom her husband owed money. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 155).

5.By a Notice of Decision and a Notice of Further Decision dated 25 August 2016 and 25 January 2017 respectively, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decisions”).

6.The Applicant appealed the Director’s Decisions to the Board. On 3 July 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §11 of the CALL-1 Form, as follows:

“The Board found that the applicant’s claim was based largely on unsupported evidence and speculation. For example, she failed to provide any medical evidence of her injuries and she had no proof that the gangsters were her husband’s friends. The gangsters did not harass her after she gave them the matrimonial home [46]. Further, on the applicant’s own evidence, her husband did not attack her from 2004 to 2014 and he did not look for her after she left Vietnam. It was also not satisfied with the applicant’s explanation for not reporting the alleged assaults to the police [47]. Besides, the Board found that there was no state involvement as it was a mere domestic violence dispute and state protection and internal relocation were both available to the applicant [48]-[50]. In totality, the Board concluded that the applicant’s evidence was questionable and unreliable and thus refused to accept that she would face any harm or risk upon refoulement [51]-[53]. Overall, since the applicant’s claim lacked credibility and the state protection and internal relocation alternatives were available, the Board rejected the applicant’s claim on all applicable grounds [54]-[74].”

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

THE JUDGE’S DECISION

8.On 14 January 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[14] The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

[15] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

[16] In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

[17] The applicant was absent without prior notice to the Board. The Board had given due notice to her that it would proceed to assess her appeal on paper if she failed to give explanation for her absence. She had failed to give any explanation for her absence. The Board proceeded to consider her case on paper and the Board had given reasons for its finding of the facts.

[18] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[19] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

9.On 20 September 2022, the Judge refused the Applicant’s application by summons dated 8 August 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2747).

THIS APPLICATION

10.On 26 September 2022, the Applicant took out a summons to apply for leave to appeal out of time against the Judge’s order of 20 September 2022. In her supporting affirmation filed on the same date, the Applicant repeated the factual basis of her non-refoulement claim.

11.The Applicant has failed to lodge any written submissions contrary to directions given by the Registrar of Civil Appeals on 26 September 2022.

DISCUSSION

12.Following the approach 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 against the Order.

13.In deciding whether to extend time to appeal, the 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.

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

15.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 14 January 2022, and has failed to raise any viable ground of appeal against the Order.

18.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons of 26 September 2022 is dismissed.

20.This judgment is written in English because the decisions of the Judge below are both written in English. If required, the Applicant may arrange with the Clerk to this Court for this judgment to be orally interpreted to her.

The Applicant, acting in person