CACV 581/2021
[2022] HKCA 565
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 581 OF 2021
(ON APPEAL FROM HCAL 169 OF 2021)
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| BETWEEN | | |
| | LUONG THI CHUNG | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________
Before: Hon Chow JA and Wong J in Court
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Wong J (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Patrick Li (“the Judge”) on 14 December 2021refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 January 2018. The Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 3 June 2016 and 12 July 2017.
2. This judgment is prepared in English because the Applicant had lodged her Notice of Appeal and supporting affirmation both dated 22 December 2021 in English.
3. The Applicant has not filed any skeleton argument in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter dated 9 February 2022 to the Applicant. Accordingly, the Applicant is deemed to have waived her right for an oral hearing and elected to have her appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 5 of the said letter.
BACKGROUND
4. The Applicant is a national of Vietnam. She arrived in Hong Kong on 15 September 2011 but overstayed, and on 26 August 2015, she was arrested by police. She lodged a non-refoulement claim on 4 January 2016, claiming that if she was refouled back to Vietnam, she would be unable to pay her debts and that she would be harmed or killed by her creditors. Details of the Applicant’s claim was summarised by the Judge at paragraphs 1 - 11 of the CALL-1 Form.
5. By a Notice of Decision dated 3 June 2016, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: the risk of torture[1], BOR 3 risk[2], and persecution risk[3]. By a Notice of Further Decision dated 12 July 2017, the Director further dismissed the Applicant’s claim on BOR 2 risk[4].
6. The Applicant appealed the Director’s decisions. On 26 January 2018, the Applicant’s appeal was dismissed by the Board, and the Board confirmed both the Director’s decision and further decision (“the Board’s Decision”).
7. The Board found the Applicant’s evidence suspicious and unreliable since the creditor did not set a deadline for repayment of the debt. The Board was also concerned about the Applicant’s real reason for leaving Vietnam, as she had confirmed to the Board that she would like to stay in Hong Kong for earning money for repayment of the loan and to marry a Hong Kong permanent resident so that she would be granted the right of abode in Hong Kong (see Board’s Decision at paragraphs 41 - 44). In any event, the Board found that there was no real and substantial risk that she would be harmed or killed if she returned to Vietnam and concluded that her claim for non-refoulement protection failed on all applicable grounds.
THE JUDGE’S DECISION
8. On 17 February 2021, the Applicant filed her Form 86 against the Board’s Decision. The Judge found that the Applicant was late with her application. An application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers there is good reason for extending the period within which the application shall be made: Order 53 rule 4(1) of the Rules of the High Court, Cap 4A. The Applicant’s application was late by over 33 months and there was no explanation as to her delay (see Form CALL-1 at paragraphs 16 - 17).
9. Further, in her Form 86 and affirmation in support of her application, the Applicant failed to identify any error made by the adjudicator in the Board’s decision (see Form CALL-1 at paragraph 16).
10. The Judge found that the Board had considered the Applicant’s evidence in detail and did not find any error of law or procedural unfairness in the Board’s decision and the conclusion was reasonable (see Form CALL-1 at paragraph 18).
11. The Judge also found that there was no good reason or explanation for the Applicant’s delay and her application for extension of time to apply for leave to apply for judicial review was refused (see Form CALL-1 at paragraph 19).
12. Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s leave application.
THIS APPEAL
13. In her Notice of Appeal dated 22 December 2021, the Applicant sought an order to set aside the order dated 14 December 2021 by the Judge and that leave to apply judicial review be granted. The Applicant stated in her grounds of appeal that she should be given an opportunity to plead her case properly. In her supporting affirmation dated the same date, the Applicant stated that there is a “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.
DISCUSSION
14. 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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14(6)).
15. In our judgment, the Applicant has already had sufficient opportunities to plead her case properly before the Director, the Board, and the Judge.
16. As regards her complaint that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, the Applicant has not provided any particulars of her bare assertion and 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: Re Kartini[2019] HKCA 1022.
17. The Applicant has not raised any viable grounds of appeal against the Judge’s decision dated 14 December 2021. The Applicant’s appeal has no merits. We dismiss the appeal.
(Anderson Chow)
Justice of Appeal | (Albert Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.