Re v. Thi Sinh

CAMP 20/2022

[2023] HKCA 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 20 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1271 OF 2018)

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Before:  Hon Au and G Lam JJA in Court

Date of Judgment:  30 January 2023

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 24 November 2021[1] refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 19 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 14 October 2016 rejecting the applicant’s non-refoulement claim.

2.On 7 January 2022, the Judge refused to extend the time for the applicant to appeal against his decision of 24 November 2021.[2]

3.As the Judge’s decision to refuse to extend time was given in English, we have issued the present judgment in English.  The applicant will be notified (in Chinese)  when this judgment is handed down that if she has any difficulty in understanding the judgment, it can be orally interpreted to her by an interpreter at the High Court.

Background

4.The applicant is a Vietnamese national.  She last arrived in Hong Kong in 2014 without permission, having previously been deported from Hong Kong to Vietnam on 24 September 2013.  The applicant was arrested by the police on 16 April 2014, and was convicted on 19 April 2014 of remaining in Hong Kong without permission and of breach of a deportation order, for which she was sentenced to 15 months’ imprisonment.  The applicant lodged her non-refoulement claim on 2 March 2015.  Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by loan sharks for failure to repay her loan.  The factual background was set out at paragraphs 8(1)  to 8(26)  of the Director’s decision.

5.By notice of decision dated 14 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 25 April 2018, during which the applicant gave testimony.  The Board appears to have accepted that the applicant did owe creditors money, but noted that during the period from 2008 to 2014 the applicant had been back to Vietnam many times without being harassed by the creditors.  The Board noted that on her own evidence, the applicant had not suffered any severe pain or suffering.  The Board also noted that it was by then more than three years since the applicant had last left Vietnam, and there was nothing to indicate that the creditors still had any intentions to go after her.  The Board was also satisfied that she could obtain state protection.

7.As such, the Board found that there was no real risk of harm in the event of refoulement. Accordingly, the Board dismissed the applicant’s appeal on 19 June 2018 on all applicable grounds.

The Judge’s decisions in the court below

8.On 4 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her supporting affirmation, the applicant raised the following grounds for judicial review:

(a)  the Board did not summon her to a hearing to explain her situation, which was unfair to her;

(b)  the Board did not arrange for an examination of her injuries;

(c)  the Board cherry-picked evidence and was unfamiliar with conditions in Vietnam, including the severity of police corruption.

9.Following consideration of the documents only, on 24 November 2021 the Judge issued his decision refusing to grant leave to apply for judicial review, the reasons for which were set out at [9] – [14] of the Form CALL-1 as follows:

「 9. 本席職責主要監督上訴委員會在作出裁決的過程之中有否遵守有關法律規定，公平公正地作出決定。至於證據和事實的評估和決定權是屬於處長和上訴委員的職責範圍，本席不應該無故干涉。有關法律規定可見於上訴法庭案例TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 和 Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1)  。

10. 本席明白，對於上訴委員會的決定，本席應該采取最嚴謹和苛刻的審查。

11. 根據上訴法庭在Re: Kartini [2019] HKCA 1022的案件中指出，有關證據的評估，包括：原居國資料、傷害風險、國家保護、國内遷徙的事實，都是處長和上訴委員的權力範圍，法庭不應該在司法復核的程序中加以干涉，除非該決定是出於法律誤判、程序不公或是有違常理的情形之下而作出。以下是原文：

‘ 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.’

12. 申請人未能提出合理理由反對處長和上訴委員對事實的判決。根據上訴委員會的決定書第8段，上訴人出席聆訊。申請人的傷勢對本案沒有重大關聯。而且，在記錄里申請人並未有向上訴委員提出驗傷的申請。上訴委員有權參考來源國資料，以衡量當地的情況，而不必親身到當地考察。根據來源國資料，越南政府採取措施打擊貪污，防止貪污。至於報章的報道，不能作爲證據。總理因爲國内貪污嚴重而辭職，證明國家重視貪污問題，國家有決心打擊貪污。

13. 本席認爲上訴委員的決定沒有法律誤判、程序不公或是有違常理。

14.  因此，本席認爲沒有任何證據顯示，申請人建議對上訴委員會的決定作出司法復核，有任何合理的成功機會。」[sic]

[English translation follows:

“ 9. My duty is primarily to supervise whether, in the process of making its decision, the Board complied with the relevant legal requirements and made its decision in a fair and just manner. The relevant requirements can be seen in the Court of Appeal’s cases of 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).

10. I understand that, as regards the Board’s decisions, I should adopt a rigorous and demanding [approach] to examining them.

11. According to what the Court of Appeal pointed out in Re: Kartini [2019] HKCA 1022, assessment of the relevant evidence, including the facts as to country of origin information, risk of harm, state protection and internal relocation, are all within the realm of the Director and the Board’s powers, which the court should not interfere with in judicial review proceedings, unless those decisions are based on legal errors of judgment or procedural unfairness or are contrary to common sense. The original text [from Re: Kartini] follows:

‘ 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.’

12. The applicant has been unable to raise reasonable grounds for opposing the Director and Board’s decisions as to the facts. According to paragraph 8 of the Board’s decision, the appellant attended the hearing. The applicant’s injuries had no substantial connection to the present case. Moreover, according to the records, the applicant did not make application or request that the Board [arrange for] an examination of her injuries. The Board has the power to refer to country of origin information in order to assess local conditions but does not need to go there on an inspection tour in person. According to the country of origin information, the Vietnamese government has taken steps to combat and prevent corruption. As for news reports, those cannot stand as evidence. [The fact that] the premier had resigned due to the severity of corruption in that country, proves that that country takes seriously the problem of corruption and has the determination to combat corruption.

13. I am of the view that the Board’s decision is without legal errors of judgment or procedural unfairness and is not contrary to common sense.

14.   Therefore, I am of the view that there is no evidence whatsoever to indicate that the applicant’s intended judicial review of the Board’s decision has any reasonable prospect of success.”]

10.One week after the expiry of the prescribed 14-day time limit, on 15 December 2021, the applicant filed a summons to seek an extension of time to appeal against the Judge’s decision.  In her supporting affirmation, the applicant briefly reiterated the factual basis of her claim, but did not specify any grounds of appeal or provide any reasons as to why an extension should be granted.

11.On 7 January 2022, determining the application on paper, the Judge refused to grant an extension of time to appeal, as he did not see any realistic prospect of success in the intended appeal.

The renewed application before this Court

12.On 17 January 2022, the applicant filed a summons at this Court to seek an extension of time to appeal.  The summons, as formulated, sought to appeal against the Judge’s decision of 7 January 2022, but it is clear that her real target is the decision of the Judge dated 24 November 2021 refusing to grant leave for judicial review.  We shall therefore treat her application as one for extension of time to appeal against that decision.  In her supporting affirmation, the applicant again briefly reiterated the factual basis of her claim, but did not specify any grounds of appeal or provide any reasons as to why an extension should be granted.

13.Despite the directions of the Registrar of Civil Appeals dated 17 January 2022 that the applicant must lodge written submissions in support of her application, she has failed to do so.  Accordingly, this application is disposed of on the papers without a hearing, pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A).

Discussion

14.Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

15.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

16.The applicant’s intended appeal was late by 7 days.   As the delay was short, we have proceeded to decide the present application on the basis of the merits of the intended appeal. 

17.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

18.In the present case, the Board rejected the applicant’s non-refoulement because, based on her testimony, the Board found that she had not suffered any severe pain or suffering, and was not likely to be faced with any real risk of harm in the event of refoulement.  The Board also found that state protection was available.  These findings are within the province of the Board, and the court will not interfere with them unless they are vitiated on public law grounds. The applicant has failed to advance any such grounds; nor can we see any on the basis of the available materials.

19.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.For the reasons above, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons of 17 January 2022 is dismissed accordingly.

The Applicant, unrepresented, acting in person