Dinh Thi Hau v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 248/2023, [2023] HKCA 1014

On An Intended Appeal From [2023] HKCFI 821 &

[2023] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 248 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 957 OF 2019)

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BETWEEN

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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 July 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 10 July 2023 refusing to grant an extension of time to appeal against the Judge’s earlier order dated 30 March 2023 (“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 3 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 September 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 27 May 2015. On 8 June 2015, she surrendered herself to the authorities and, on the same day, made a claim for non-refoulement protection by way of a written statement on the basis that if refouled, she would be harmed or killed by her creditor and his henchmen as a result of her inability to repay a debt owed by her and/or her husband to the creditor.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

5.By a Notice of Decision dated 27 September 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 3 April 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 §9 of the CALL-1 Form:

“上訴委員會考慮了原居國資訊 (見:第43段至第51段)。其後，上訴委員會考慮了申請人的證據。它裁定，債主並沒有嚴重傷害或者殺害申請人的意圖；申請人的身心並沒有因為債主受到嚴重影響；債主亦沒有傷害申請人的家人；及沒有證據顯示債主與越南官方有任何聯繋或政府不會保護申請人 (見：第52段至第70段)。無論如何，上訴委員會認為國内遷移對申請人來説完全合理可行 (見：第71段至第77段)。”

7.On 9 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In her supporting affirmation filed on the same date, she stated as follows:

“Am I refouled to Vietnam, I will be faced a genuine and Substantial risk of being subject to torture or even killed by my creditor and his men since I can’t pay back the debt.” [sic]

THE JUDGE’S DECISION

8.On 30 March 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[13] 本席明白，對於上訴委員會的決定，本席應該採取最嚴謹和苛刻的審查。

[14] 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。…

[15] 申請人在誓章未能提出合理理由反對處長或上訴委員對事實的判決。

[16] 本席認為上訴委員的決定沒有法律誤判、程序不公或是有違常理。

[17]  因此，本席認為沒有任何證據顯示，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。”

9.On 30 May 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 10 July 2023, the Judge refused the application, holding that there was no realistic prospect of success in her intended appeal.

THIS APPLICATION

10.By a summons taken out on 12 July 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Judge’s order of 10 July 2023.

11.In a Statement filed on 12 July 2023, the Applicant repeats her allegation that her life will be seriously threatened and she may even be killed by her creditor if she returns to Vietnam.  She disagrees with the Director that she can relocate to live in another part of Vietnam away from her home for various reasons, and alleges that the Director failed to consider her human rights under (inter alia)  the Basic Law and the International Covenant on Civil and Political Rights.

12.The Applicant has failed to lodge any written submissions in support of her application, contrary to the directions given by the Registrar of Civil Appeals on 12 July 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 any error in the Judge’s decision of 30 March 2023, or 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 12 July 2023 is dismissed.

21.This judgment is written in English because the Applicant’s summons, affirmation and Statement are all written in English.  If required, the Applicant may arrange with the clerk to this Court for the judgment to be oral interpreted to her at a mutually convenient time in the Court’s premises.

The Applicant, acting in person