RE NGUYEN THI KIM

CACV 23/2022

[2022] HKCA 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 23 OF 2022

(ON APPEAL FROM HCAL NO. 2729 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  On 4 March 2022, this court handed down a judgment ([2022] HKCA 307) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 29 December 2021 refusing to give her leave to apply for judicial review.

2.  On 27 April 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  She has also put in a written submission to support her application.

3.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  As a result of the closure of the High Court registry between 7 March and 11 April 2022 due to the public health situation, and by reason of section 71(1A)(a) of the Interpretation and General Clauses Ordinance, Cap. 1, the time for the applicant to apply for leave to appeal against our judgment expired on 12 April 2022.  The applicant’s Notice of Motion is late by about two weeks, which is not an insignificant delay.  She has provided no explanation for the delay.

7.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted 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.

8.  The Notice of Motion and the affirmation raised the following grounds:

(1)  The Director of Immigration disregarded the applicant’s human rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 and the international covenants.

(2)  If the applicant returns to Vietnam, her life will be under serious threat because the gangsters and creditors in Vietnam are cruel, violent, have no regard for human life and will kill people when they are angry.  As the applicant has not yet agreed on a repayment plan with her creditor, her life will be in danger and she will be killed on her return.

(3)  Contrary to what was suggested, internal relocation is not feasible as the applicant’s health is not good and she is near retirement age, which will disadvantage her in the labour market and reduce her adaptability.  Also, her creditor and the gangsters have a nationwide network and will be able to track her down.

(4)  The Court reached its decision unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

9.  The written submission summarised the applicant’s case and repeated the contents of the Notice of Motion and the affirmation.   

10.  We are of the view that the arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the applicant’s claims and her personal circumstances, and have not identified any question of great general or public importance, as required by section 22(1)(b) of the Ordinance.  Further, for the reasons we gave at paragraph 14 of our judgment, the matters raised by the applicant are unarguable.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal have not been met, it is futile to extend the time for the filing of the Notice of Motion.  Accordingly, we refuse to extend time and dismiss the Notice of Motion.

CACV 23 /2022

[2022] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2022

(ON APPEAL FROM HCAL NO 2729 OF 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  The applicant lodged a Notice of Appeal on 11 January 2022 against the decision of Deputy High Court Judge Lung (“the Judge”) given on 29 December 2021^[1]. By that decision, the Judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant is a national of Vietnam.  She is 62 years old.  She entered Hong Kong illegally in April 2012 and was repatriated to Vietnam in June 2012.  On 12 November 2015, she was arrested by the police for entering into Hong Kong illegally.  She raised a non-refoulement claim on 17 November 2015 on the basis that she would be harmed or killed by her creditor upon her return to Vietnam due to her inability to repay her debt. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  She lodged her written submissions on 13 January 2022 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decision

4.  By a Notice of Decision dated 7 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

5.  The Director assessed that the level of risk of harm the applicant would face is low as the past harm inflicted by the creditor and his people did not meet the minimum level of severity.  The Director also found that her problem is a private debt with nothing to do with the Vietnamese government or authorities.  The Director further held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

6.  Their appeal against the Director’s decision was heard before the Board on 5 October 2018.  By a decision dated 26 November 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s claims about her business, the illness of her husband and daughter, her borrowing from the moneylender, and the harm and ill-treatment inflicted on her to be fabrication, having regard to significant inconsistencies in her evidence.  In particular, her evidence concerning the illness and medical treatments received by her husband and daughter, the nature of the business she operated and the time she borrowed from the moneylender had significantly discrepancies and was also inconsistent with her previous accounts of the events.  The Board did not accept that she experienced any problems or harm from the creditors and considered there is no real risk that she would face any of the prescribed forms of harm should they return to Vietnam.  The Board further found state protection and internal relocation alternatives were reasonably available, which would reduce or negate any risk of harm she may face.  The Board therefore concluded that she failed to show she is entitled to non-refoulement protection on any of the applicable grounds.

The intended judicial review

7.  The applicant filed a Form 86 and affidavit on 3 December 2018 to seek leave to apply for judicial review against the decision of the Board.  In her application, other than repeating the primary facts underlying her claim and reiterating the harm she would face upon her return to Vietnam, the applicant did not put forward any specific grounds for the intended challenge.

The Judge’s decision

8.  The Judge dealt with the leave application on the papers as the applicant did not request for an oral hearing.  By a Form CALL-1 dated 29 December 2021 ([2021] HKCFI 3856), the Judge dismissed the leave.  In summary, the Judge found that the applicant does not have any reasonably arguable basis to challenge the finding of the Board as she failed to raise any ground to challenge the Board’s finding and decision. The Judge found no error of law or procedural unfairness in the Board’s decision and concluded that there is no prospect of success in the intended judicial review.

The grounds of appeal

9.  By a Notice of Appeal and an affirmation filed on 11 January 2022, the applicant appealed the Judge’s decision to this Court.  In the Notice of Appeal, she stated by way of grounds of appeal that:

(1)  the gravity of her circumstances has not been weighed or realized by the putative respondents in considering her non‑refoulement claim;

(2)  she should be given an opportunity to plead her case properly.

10.  In her affirmation, the applicant stated that: “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “I was informed that the Director of Immigration and the Adjudicator did not see the grounds to reserve their decision.”   

11.  The applicant’s written submission gives an outline of her claim and the procedural history.  Under the “Submission” section, it quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[6] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness.  It is said that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.  It also complains that the Director did not consider the applicant’s human rights under the Basic Law and various international covenants.  Finally, it says that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, her life will be in danger as she has not yet agreed a repayment plan with the creditors.            

Legal Principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

13.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

Analysis and disposition

14.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no elaboration on the specific grounds of appeal that the applicant seeks to put forward.  As such, they do not amount to proper grounds of appeal.

(2)  The Board had accepted the primary facts underlying the applicant’s claim.  The applicant’s complaint that the Board did not fairly or properly assess her credibility is therefore misplaced.

(3)  In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written submission cannot amount to arguable ground of appeal. 

(4)  As to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s has been superseded and is no longer susceptible to judicial review.       

15.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review. 

16.  For the above reasons, there is no merit in the appeal or the intended application for judicial review.  Accordingly, we therefore dismiss the appeal.

[1]   [2021] HKCFI 3856

[2]   As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3]   This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]   This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]   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 and its 1967 Protocol.

[6]   Misquoted as “ST v Director of Immigration” in the applicant’s written submission.