RE DANG THI THU

CACV 165/2021

[2023] HKCA 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2021

(ON APPEAL FROM HCAL 1396 OF 2018)

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________________________

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J U D G M E N T

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

1.  On 10 May 2022, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and L Wong J)  judgment of 29 December 2021 (“the Judgment”)  ([2021] HKCA 1931). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 1 April 2021, refusing her application for leave to apply for judicial review ([2021] HKCFI 845)  (“the Leave Decision”).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 26 January 2022.  Accordingly, the applicant was late for over 3.5 months in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion[1], the applicant merely reiterated the factual basis of her non-refoulement claim and that she fled Vietnam and escaped to Hong Kong as she was beaten by her creditor for her failure to repay her debts.  In her supporting affirmation, she claimed that owing to the pandemic, she was late in receiving the letter from the Court and upon receiving the Judgment, she was already out of time.

7.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

8.  At the outset, it is noted that a delay of 3.5 months is very substantial and the applicant failed to provide any good reason in support of her delay.  Although the applicant alleged that she received the Judgment late owing to the pandemic, she provided no supporting evidence or specific particulars as to her allegations.

9.  More importantly, her intended application is wholly without substance.  The allegations made in her Notice of Motion are all bare and vague allegations unsupported by any evidence. She did not identify any specific error in the Judgment with sufficient particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  The applicant’s intended appeal plainly has no merit.

10.  Further, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

11.  The applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

12.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion is dismissed.

The applicant acting in person

CACV 165/2021

[2021] HKCA 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2021

(ON APPEAL FROM HCAL 1396 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”)  on 1 April 2021 (“Judge’s Decision”)  refusing to grant leave for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 19 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of her non-refoulement claim (“NRF Claim”)  by a notice of decision dated 14 December 2016 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Vietnam, is a fear of being harmed or even killed by her creditor (“AhFung”)  and her underlings because she was unable to pay off her debts.

3.  The circumstances giving rise to such alleged fear have been set out in paragraph 9 of the Director’s Decision, paragraphs 6 to 31 of the Board’s Decision and [5] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 845 (“Form CALL-1”).

4.  Briefly:

(1)  In January 2000, the applicant was lured into gambling by Ah Fung who operated an illegal gambling den in their village.

(2)  When she started losing money, the applicant borrowed from Ah Fung, with monthly interest at 20 million Vietnamese Dong.

(3)  The applicant only paid interest for the first month.  Nevertheless, Ah Fung still encouraged her to gamble.

(4)  To finance her gambling, she sold her farmland to Ah Fung for 200 million Vietnamese Dong.  She received half of the price in cash while the other half was applied to settle the outstanding interest.

(5)  The applicant continued to gamble until about mid 2012, during which time her indebtedness to Ah Fung kept escalating.

(6)  In about late February 2012, 5 strangers, whom the applicant believed to be Ah Fung’s men, assaulted her at her home.

(7)  In April 2012, the applicant was forced to part with the title deeds and keys to her house as part repayment after Ah Fung’s men assaulted her for the second time.

(8)  The police refused to help, saying that it was a private problem because the applicant went to an illegal gambling establishment.

(9)  Thereafter, from April/May 2012 to November 2012, the applicant worked at her friend’s farm, which was about 10 km from her own house.  Ah Fung and her men did not find her.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.  The applicant entered Hong Kong illegally in November 2012.  She was convicted and imprisoned in February 2014 for using a forged identity card.  She raised the NRF Claim by written signification dated 24 March 2014 while she was in custody.

6.  After considering the information provided by the applicant in her Non-Refoulement Claim Form (“NCF”)  and at her screening interview, the Director found the NRF Claim unsubstantiated under any of the grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the risk of future harm from Ah Fung was low.  The past ill-treatment, physical or mental, did not attain a minimum level of severity.  Ah Fung’s true intention was to obtain repayment from the applicant, not to kill her.

(2)  Second, reasonable state protection would be available to lower or even negate the risk (if any).  There is objective country of origin information (COI)  showing that the Vietnamese government has implemented policies, with positive results, to enhance the protection of citizens and to monitor police conduct.  The alleged negative reception of the applicant’s complaint by the police appeared to be just an isolated incident.

(3)  Third, the perceived risk (if any)  can be further reduced by internal relocation within Vietnam. The applicant, an able-bodied adult with 26 years of working experience, would suffer little or no hardship in moving to say Hanoi, Ho Chi Ming City etc.

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 9 May 2018, which the applicant attended to give evidence and answer the Board’s questions.

8.  The Board dismissed the appeal.  It did not find the applicant’s evidence credible, noting numerous inconsistencies and discrepancies between her oral evidence before the Board and the information she provided in the NCF.  Nor did it consider the applicant’s description of the threats that she had received from Ah Fung truthful or reliable.  It further found that internal relocation was viable.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”)  issued under HCAL 1396/2018 on 16 July 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed ground.  In her supporting affirmation filed on the same day, the applicant simply (1) repeated that she would face a genuine and substantial risk of being subjected to torture or killed by her creditor and (2) exhibited a copy of the Board’s Decision.

10.  The applicant did not request an oral hearing.  After considering the material before him, the Judge refused leave for the reasons set out in [11] to [16] of the Form CALL-1:

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

12. 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.’

13. As the Board had rejected her evidence, she has no factual basis in support of her claim. Her grounds in support of this application does not assist her.

14. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Appeal to Court of Appeal

Ground(s)  of appeal

11.  By the notice of appeal filed herein on 14 April 2021, the applicant appealed against the refusal of leave for judicial review on the ground that the Director and the Board had not realised or properly weighed the gravity of her circumstances.  She further deposed in the supporting affirmation filed on the same date that there was a good ground of appeal “that was not necessarily considered at the stage of applying for leave for Judicial Review”, but without stating what the ground was.

Failure to file written submission

12.  In breach of paragraph 3(1)  of the directions given by the Registrar of Civil Appeals on 9 August 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 6 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 12 October 2021 was therefore vacated, leaving us to deal with the appeal on the basis of the material already filed with the court.

Discussion

15.  In view of the stroppy manner in which the applicant has conducted the application before the Judge and the appeal before us, we can dispose of this matter shortly.

16.  First, the role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(1)]. 

17.  The question whether the applicant would be at risk of life or torture if refouled to Vietnam is a question of fact within the province of the Board (after the Director).  The applicant’s much-repeated assertion in the Form 86 that she would be in danger from her creditor if she should return to Vietnam is inconsistent with the findings made at both stages of the unified screening mechanism.  The applicant had not in the Form 86 or the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in making such adverse finding against her or in any other respect.  That being the case, the proposed judicial review was hopeless and leave was rightly refused.

18.  Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director)  afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)].

19.  The complaint in the notice of appeal, vague and unparticularised as it is, is directed against the Director and the Board.  The applicant simply did not in the notice of appeal or affirmation before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.  Nor can we act on a bare assertion (made in the supporting affirmation)  that a ground of appeal exists without being told what it is.

20.  In any event, we have anxiously examined the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

21.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, was absent