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

CAMP 147/2023, [2023] HKCA 902

On An Intended Appeal From [2023] HKCFI 182 &

[2023] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 147 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 30 OF 2019)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

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

1.On 11 April 2023, 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 2 March 2023 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 19 January 2023 (“the Order”)  refusing to grant leave 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 31 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 June 2018 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.  On 1 March 2014, she was arrested by the police for being a suspected illegal immigrant.  On 30 September 2014 and 4 December 2017 respectively, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor and his associates due to her outstanding loan payments. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

5.By a Notice of Decision dated 7 June 2018, 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 Decision”).

6.The Applicant appealed the Director’s Decision to the Board.  On 31 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§9-11 of the CALL-1 Form:

“[9] The Board considered the country of origin information (‘COI’)  and found that there were effective measures implemented by the Vietnamese government to combat, inter alia, illegal moneylending activities [29]-[32]. It also took into account the availability of internal relocation [33]-[35]. In assessing the credibility of her claim, the Board probed into the details of the material aspects of her claim [50]-[51].

[10] After considering the evidence, the Board found that the applicant’s evidence largely based on her unsupported assertions; that the existence of the loan was in doubt; that Long’s harassment was not intense and he did not harm the applicant’s family; that her evidence on the alleged illegal immigration into Hong Kong was questionable; that her assertion that Long was influential and the police would not assist her as it was merely speculative; that there was no evidence on Long’s extensive network in Vietnam; that the COI showed that both state protection and internal relocation were available to the applicant; and that her failure to take out insurance to cover a business, in which she had no prior experience was unreasonable [52]-[64]; [71]-[72].

[11]  In light of the aforesaid inconsistencies, the Board found that the applicant’s claim was not reliable [66].  In assessing the individual grounds, the Board further found that the dispute was private in nature without state involvement [71].  As a result, the Board rejected her claim and dismissed her appeal.”

7.On 4 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In her supporting affirmation filed on the same date, she set out the factual basis of her non-refoulement claim, but failed to identify any ground of review of the Board’s Decision. 

THE JUDGE’S DECISION

8.On 19 January 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[17] The story in [the Applicant’s affirmation] had been considered by the Board. There is no valid ground to challenge the Board’s Decision.

[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 6 February 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 2 March 2023, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.By a summons taken out on 11 April 2023, the Applicant applied for a leave to appeal out of time against the Judge’s order of 2 March 2023.

11.In her affirmation filed on the same date, she repeated the factual basis of her non-refoulement claim.

12.The Applicant has failed to lodge written submissions in support of her application, contrary to the directions given by the Registrar of Civil Appeals on 11 April 2023.

DISCUSSION

13.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.

14.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.

15.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.

16.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)).

17.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 is an 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.

18.The Applicant has failed to identify or show any arguable error in the Judge’s decision of 19 January 2023, and has failed to raise any viable ground of appeal against the Order.

19.There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 11 April 2023 is dismissed.

21.This judgment is written in English because the decisions below were in English.  If required, the Applicant may arrange with the clerk to this Court for an oral interpretation of the judgment by a Vietnamese interpreter at a mutually convenient time in the Court’s premises.

The Applicant, acting in person