Re Le Thi Ninh

CAMP 560/2021

[2023] HKCA 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 560 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1120 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 C P Pang (“Judge”)  on 28 January 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 18 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 10 March 2017 rejecting the applicant’s non-refoulement claim.

2.On 11 November 2021, Deputy High Court Judge P Li refused to extend the time for the applicant to appeal against the Judge’s decision of 28 January 2021.[2]

Background

3.The applicant is a Vietnamese national.  After arriving in Hong Kong by boat on 16 May 2016, she surrendered hereself to the Immigration Department on 17 May 2016 and lodged her non-refoulement claim on the same day.  Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by a creditor for her failure to repay a loan.  The factual background was set out at [22] to [32] of the Board’s decision.

4.By notice of decision dated 10 March 2017, 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]

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 31 January 2018, during which the applicant answered questions from the Board. The Board accepted that the applicant had borrowed money for her business of selling fish but was unable to repay it when the business failed.  The Board noted, however, that on the applicant’s own evidence, after she stopped making repayments on her debt, she was able to remain at her home until she left Vietnam a year later, and was not harmed during that period.  The Board found that the applicant’s evidence about rumours that the creditor had hired triad members to kill her was vague and unconvincing.  The Board noted that the applicant’s evidence ultimately was to the effect that she could return to Vietnam to deal with the loan, and might be able to sell her house to repay the loan.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable as the alleged risk of harm was a localised one.  Accordingly, the Board dismissed the applicant’s appeal on 18 May 2018 on all applicable grounds.

The Judge’s decisions in the court below

6.On 19 June 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 deposed that the creditor and her subordinates could have inflicted more serious harm had they intended to, and that the applicant would be put in jail under the offence of “fraudulence” if sued by the creditor.  However, the applicant did not specify any grounds for judicial review either in the affirmation or in her Form 86.

7.Following consideration of the documents only, on 28 January 2021 the Judge issued his decision refusing to grant leave to apply for judicial review, the reasons for which were set out at [13] – [17] of the Form CALL-1 as follows:

“ 13. In the present case, the Board did not take issue with the applicant’s asserted primary facts. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on availability of protection by the police and the viability of internal relocation.

14. As mentioned above assessment of evidence, the risk of harm, and availability of state protection as well as 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.

15. The complaints raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. The new complaint that she might be put in jail for fraudulence was a bare assertion without evidence in support, nor was it raised before the Director and the Board. The new complaint is devoid of merit. There is no reasonably arguable basis to challenge the Board’s findings.

16. Indeed, the applicant’s claim is extremely weak. Even on her own account, the alleged past ill-treatment was of low intensity and frequency. She was not harmed at all by her creditor. The treatment she received came nowhere near the level of severity required by law to constitute torture or CIDTP to warrant international protection. The decisions of the Director and the Board decision are wholly reasonable.

   17.   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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.”

8.The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A).  After some delay, on 5 March 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 stated that she did not have financial means to obtain legal advice regarding the appeal procedure.  She also stated that she understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but did not specify what that ground was.

9.On 11 November 2021, determining the application on paper, Deputy High Court Judge P Li refused to grant an extension of time to appeal, as he did not see any merit in the intended appeal, and thus dismissed the summons.

The renewed application before this Court

10.On 14 December 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  In her supporting affirmation, the applicant explained that her appeal was late because she did not have money to seek legal advice, and could not approach the High Court’s Resource Centre for Unrepresented Litigants to find out how to appeal.  She stated again that she understood there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but did not specify what it was.

11.Despite the directions of the Registrar of Civil Appeals dated 14 December 2021 that the applicant should lodge written submissions in support of her summons, the applicant has failed to do so.  We consider it appropriate to determine this application for extension of time to appeal on the papers without a hearing, based on the available documents and materials, pursuant to Order 59 rule 14A.

Discussion

12.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.

13.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.

14.The applicant’s intended appeal was late by 22 days.   While the delay was not very lengthy, there was no valid and acceptable explanation for it.  Time should therefore not be extended unless there are real prospects of success in the intended appeal.

15.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.

16.In the present case, the Board rejected the applicant’s non-refoulement claim based on the fact that even on the basis of her evidence, she had not suffered any harm between the time she stopped making repayments and her departure from Vietnam a year later.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  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 not been able to put forward any such grounds; nor are we able to see any on the available materials.

17.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.

18.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 is dismissed accordingly.

The Applicant, unrepresented, acting in person