Tran Thi Lin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 150/2023, [2023] HKCA 894

On An Intended Appeal From [2022] HKCFI 1315 &

[2023] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 150 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 534 OF 2019)

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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 12 April 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 13 February 2023 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 6 May 2022 (“the Order”) refusing to grant her 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 12 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 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 claimed to have entered Hong Kong illegally from Shenzhen on 16 June 2015. She surrendered herself to the Immigration Department on 18 June 2015. On the same day, she raised a non-refoulement claim on the basis that she would be harmed or killed by a creditor for being unable to repay a debt owed by her deceased husband. Details of the Applicant’s claim have been summarised by the Judge at §§1-11 of the CALL-1 Form.

5.By a Notice of Decision dated 6 January 2017, 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 12 February 2019, 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 §§12-15 of the CALL-1 Form:

“[12] 經考慮過申請人提出的文件及在聆訊時的證供，上訴委員會裁定申請人的證供不可信。上訴委員會認為申請人聲稱她沒有向債主查問、欠款的細節及要求查看借據，便同意承擔丈夫的巨額債項，有違常理。

[13] 申請人稱她在2005年至2015年借宿於阿翠家中，長達10年，而毋須付膳宿費。阿翠只是申請人數年前才認識的泛泛之交。在上訴委員會提問下，申請人改稱不記得有沒有居住十年，然後支吾以對。上訴委員會認為申請人與阿翠之間的情節匪夷所思，她的案情內在不可信。

[14] 申請人從來沒有向越南公安求助，她的解釋是：由於追債是私人糾紛，越南政府或有關當局不會向她提供協助。她沒有實質證據證明公安不會保護她的安全。上訴委員會認為她的解釋沒有事實基礎。上訴委員會亦認為債主沒有足夠的資源在越南每一個地方搜尋申請人；而作為一個健全及擁有十多年工作及營商經驗的成年人，遷移到越南其他地方如胡志明市，以避免債主的威嚇，並不嚴苛或不合理。

[15] 申請人負上舉證責任，提供足夠事實基礎證明她面對統一審核機制下其中一項適用的理由所指的風險。由於上訴委員會不信納申請人的證供，她未能成功證明持免遣返聲請必需的事實基礎。她不能享有免遣返保護。因此，上訴委員會維持處長在通知書內的決定，駁回她的上訴。”

7.On 25 February 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 repeated the factual basis of her non-refoulement claim.

THE JUDGE’S DECISION

8.On 6 May 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[16] 申請人沒有在表格86或她的支持申請誓章內述明她申請司法覆核許可的理據。在誓章內，她只是重複她的案情，及展示上訴委員會的裁決書。她強調受到債主的恐嚇、十分害怕及生命受到威脅，所以逃到香港。她不認同上訴委員會的裁決，但沒有指出上訴委員會的裁定有任何錯誤，也沒有提供申請司法覆核的理據。

[17] 申請人投訴的實質是她不同意上訴委員會不信納她的證據，不相信她是因害怕被追債和被殺而必須逃離越南，並裁定她的免遣返申請欠缺事實基礎，而拒絕她的申請。實質上，她是籍司法覆核的名義質疑上訴委員會的事實裁定提出上訴。

[18] 法庭在審理司法覆核的責任不是重新評估申請人的免遣返申請。在審理免遣返聲請時，主要的決定者是入境事務處處長及上訴委員會。只是他們才有權利評估證據，證人的可信性及作出與免遣返相關的事實裁定，例如在統一審核機制下所有適用的理由與所指的風險、原居國家所能提供的保護及在原居國家內搬遷的可行性等。法庭會仔細審查上訴委員會的裁定。法庭僅會針對上訴委員會在審理免遣返申請所犯的法律錯誤、程序不公平或不合理的況，通過司法覆核方式進行干預，見：Nupur Mst v Director of Immigration。

[19] 上訴委員會正確地列出統一審核機制下所有適用的理由包括：酷刑風險、《人權法案》第三款的風險、《人權法案》第二款的風險及受迫害的風險。上訴委員會亦正確地引述適用的法律原則，舉證標準，並援引了相關案例支持它的裁定。它知悉到在裁決上訴時須重新考慮所有相關事情的始末，而並非只考慮入境事務處處長的決定是否正確。上訴委員會正確地確定申請人的免遣返申請是建基於她指稱債主對她的威嚇、她所遭受迫害的風險、越南政府不能提供她適當的保護、她所面對受傷害的真實機會等。

經認真及仔細審查上訴委員會的裁決書、相關的文件及證據後，法庭確定上訴委員會的決定沒有涉及任何法律錯誤或程序不公平的情況。它的裁定不存在可被視為程序不公平或「溫斯伯里」不合理的況 (即按照Wednesbury一案所訂標準，原審法官祇須審查案中證據，從而決定是否根據這些證據，一個合理的法官，對自己作出恰當的法律指引後，不可能會作出的決定)。上訴委員會的裁定完全沒有絲毫錯誤。申請人在本申請沒有合理可爭辯的論據，她的司法覆核申請沒有合理成功機會。”

9.On 9 December 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 13 February 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 12 April 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 13 February 2023.

11.In her supporting affirmation filed on the same date, the Applicant says that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case or the situation in her country.

12.In a statement dated 10 April 2023 attached to the summons, the Applicant repeats her assertion that if she returns to Vietnam, her life will be seriously threatened and she may even be killed because most of the creditors and gangsters in Vietnam are cruel and violent, and they are willing to kill people to satisfy their anger and ferocity. She also disagrees with the Director that she can relocate to live in another part of Vietnam away from her home for various reasons.

13.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 12 April 2023.

DISCUSSION

14.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.

15.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.

16.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.

17.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)).

18.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.

19.The Applicant’s complaint that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case or the situation in her country has no merits. The Applicant did not request for an oral hearing in the Form 86. In view of the apparent lack of merits of the application, the Judge was entitled, in the exercise of his discretion under Order 53, rule 3(3) of the Rules of the High Court, Cap 4A, to deal with the leave application on paper.

20.The Applicant has failed to identify or show any error in the Judge’s decision of 6 May 2022, and has failed to raise any viable ground of appeal against the Order.

21.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

22.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 12 April 2023 is dismissed.

23.This judgment is written in English (except those parts quoted from the Judge’s decision dated 6 May 2022) because the Applicant’s summons, affirmation and statement attached to the summons are all in English and the Judge’s decision dated 13 February 2023 is also 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