Re v. Thi Thuy Ngan

CACV 200/2023, [2024] HKCA 277

On Appeal From [2023] HKCFI 1604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2023

(ON APPEAL FROM HCAL NO. 1549 OF 2021)

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JUDGMENT

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

1)  The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 16 June 2023 in which he refused to grant extension of time to her for leave to apply for judicial review.

2.By written confirmation of the applicant dated 29 June 2023, the applicant consented to this appeal being dealt with on paper.  The applicant failed to lodge skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 29 June 2023.  We would deem the applicant to have abandoned her right to rely on written submissions, and deal with this appeal on paper. 

2)  Background

3.The applicant is a national of Vietnam.  The applicant on 23 December 2016 illegally entered the Mainland by boat.  Subsequently, on 28 December 2016, the applicant hid in a vehicle from Shenzhen and entered Hong Kong illegally.  The applicant made her non-refoulement claim application on 28 March 2017 and 15 April 2017 by written representation.

4.The basis of the applicant’s claim is that she would be harmed or killed by her creditor Minh due to non-repayment of a loan.

5.The background facts have been summarized in the decision of the Judge at [2] to [5].

3)  The Director’s Decision

6.The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 22 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 4 April 2019, the Board dismissed the applicant’s appeal on 1 August 2019 (‘the Board’s Decision’).

8.The Board held that the applicant was not a credible witness.  It did not accept the applicant’s story to be true.  The claimant even in the most generous interpretation was not to be a witness of truth.  The Board did not accept that the applicant’s husband and son were fined $300 million.  It did not accept that the applicant borrowed money from the bank to pay the fine of her husband and son.  The Board did not accept the applicant borrowed money from the moneylender.  The Board found this aspect of the claim to be simply a fabrication.  The inconsistencies were fatal as the centrepiece of her claim could not stand.  In any event, the dispute in question was a private dispute with no state involvement, state protection and internal relocation were available.

5)  Decisions of the Judge

9.The applicant filed her Form 86 without stating any grounds.  In her supporting affirmation, she made broad and vague complaints such as the decision being reached unfairly, and repeated her story that she borrowed a large amount of money and was beaten, her life was in danger and if she returned she would be killed.  She asked the Court to give her a chance to seek justice. 

10.The Judge held in his Decision that no reasons were provided by the applicant for the serious delay of about two years to take out judicial review.  As for merits, no grounds were provided for the intended action.  There was no reasonably arguable basis to challenge the Board’s decision.

6)  Grounds of appeal

11.In the applicant’s notice of appeal, the applicant stated that the gangsters in Vietnam were different and were cruel and violent.  She stated that the Director’s suggestion of her changing to another location was unfeasible.  She stated that with a nationwide network of gangsters for the creditors to find her.  She stated that the Director did not consider her human rights.  In the applicant’s supporting affirmation, the applicant stated that a good ground of appeal was not necessarily considered at the leave stage.  She stated that she was informed that the Director and Board did not see grounds to reserve their decisions.

7)  Our view

12.We are of the view that the appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against the refusal to grant leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong.

13.The applicant failed to point out with sufficient particularity any errors committed by the Judge.  We see no basis to disturb the Judge’s decision. 

14.Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person