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

CAMP 325/2022, [2024] HKCA 222

On Appeal From [2021] HKCFI 3891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 325 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1592 OF 2021)

____________

____________

_________________

J U D G M E N T

_________________

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 K.W. Lung (“Judge”) dated 31 December 2021[1] refusing to extend time for the applicant to apply for judicial review and refusing to grant leave for the applicant 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 3 January 2018.  In that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 12 July 2016 and 14 February 2017 respectively rejecting her non-refoulement claim.

2.On 21 July 2022, the Judge refused to extend time for the applicant to appeal against his decision of 31 December 2021.

Background

3.The applicant is a national of Vietnam born in 1984.  She claimed to have last entered Hong Kong illegally on 16 September 2015 and surrendered to the Immigration Department on 21 September 2015.  On the same date, she lodged her non-refoulement claim by way of written representation on the basis that she would be harmed or killed by a loan shark and his associates due to her failure to repay the loan, if she was refouled to Vietnam.

4.The applicant’s claim was initially assessed by the Director with reference to the relevant risks of BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]  By a notice of decision dated 12 July 2016, the Director rejected the claim.

5.By letter dated 27 January 2017, the Director invited the applicant to submit any additional facts relevant to her non-refoulement claim with reference to BOR 2 risk[5] by 10 February 2017.  However, the Director did not receive any reply from the applicant.  By a notice of decision dated 14 February 2017, the Director rejected the claim with reference to BOR 2 risk.

6.The applicant had appealed to the Board against the Director’s decision dated 12 July 2016 and a copy of the Director’s decision dated 14 February 2017 was forwarded to the Board for their action.  The Board held an oral hearing of the appeal with reference to all four relevant risks on 30 March 2017, but the applicant was absent.  As the Board was satisfied that the notice of hearing had been duly served on the applicant, it proceeded to hear and determine the appeal in the absence of the applicant.  In its decision dated 3 January 2018, the Board dismissed the appeal and affirmed the decisions of the Director dated 12 July 2016 and 14 February 2017.  The Board found that the applicant’s evidence of her past experiences did not reach the requisite level of severity to establish any of the risks, that the alleged risks of harm from the loan shark are all localized risks, and that reasonable state protection and internal relocation would be available.  As a result, the applicant failed to establish substantial grounds to show that she would be subjected to any of the relevant risks.

The Judge’s decisions in the court below

7.More than 3.5 years after the expiry of the 3 months’ time limit for judicial review under Order 53 rule 4 of the Rules of the High Court (Cap 4A), on 22 November 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision dated 3 January 2018, without specifying any grounds in that form.  In the supporting affirmation, the applicant merely stated that she sought leave to apply for judicial review against the Director.

8.The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 31 December 2021, the Judge issued his decision to refuse to extend time for the applicant to apply for judicial review.  The reasons were set out in [13] to [19] of the Form CALL-1 as follows:

“ 13. As mentioned in paragraph 1 above, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Her delay is significant and serious. I shall first consider the prospect of the intended judicial review.

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.’

17. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion in accordance with Re Hidayah [2018] HKCA 595 §15.

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.More than 5 months after the expiry of the 14-day time limit for appeal, the applicant filed a summons on 22 June 2022 together with a supporting affirmation to apply for extension of time for appeal.  In her affirmation, the applicant stated that she changed her address, she did not speak English or Cantonese, she did not know how to update the Court about her change of address, she did not receive the Court’s letter, and she required help from her friends to file her appeal. On 21 July 2022, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.[6]

The renewed application before this Court

10.By summons filed on 31 August 2022, the applicant made an application for leave “to appeal out of time the order dated 21 July 2022” and “to advance a new sole ground of appeal”.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 31 December 2021 refusing to extend time to apply for leave for judicial review and refusing leave for judicial review. 

11.In the applicant’s supporting affirmation, she stated that the Judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her country, without any elaboration.  The applicant further filed a “statement” on the same date together with the summons and affirmation.  In her statement, the applicant stated that she had changed her address, but since she did not know English or Cantonese, she did not know how to update her address, so she did not receive the Court’s letter. The applicant also stated her dissatisfaction with the Judge’s decisions, repeated the basis of her non-refoulement claim and claimed that her human rights had not been considered.  She further stated that the Board and the Director did not believe her oral evidence and did not sufficiently investigate her case.

12.The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 31 August 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.The applicant was more than 5 months late when she filed her initial summons on 22 June 2022.  In her supporting affirmation, the applicant stated that she did not know English or Cantonese, so she did not know how to update her address with the Court and she needed to wait for her friends to help her with her appeal.  We do not accept this as a valid excuse for the considerable delay.  In any event, as explained below, we do not find any merits in her intended appeal.

14.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal as the Board had considered the merits of the applicant’s case and had given reasons in support of its conclusion.  Although the applicant complained that the Board did not accept her oral evidence, she actually did not attend the oral hearing and the Board assessed her claim on paper.  The Board rejected the applicant’s non-refoulement claim, because it considered that her past experiences did not reach the requisite level of harm, that the alleged risks of harm were all localized, and that reasonable state protection and internal relocation would be available.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

17.The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review. 

18.In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 31 August 2022 is accordingly dismissed.

The Applicant, unrepresented, acting in person