RE MAU THI CHIN

CACV 69/2022, [2023] HKCA 863

On Appeal From [2022] HKCA 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 69 OF 2022

(ON APPEAL FROM HCAL NO 1276 OF 2021)

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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 25 April 2023, the applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against this court’s judgment of 21 September 2022 (“the Judgment”)  ([2022] HKCA 1379). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge P Li dated 26 January 2022, refusing her application for leave to apply for judicial review ([2022] HKCFI 301).

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 19 October 2022.  Accordingly, the applicant was over six months late 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 only 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, the applicant stated that her life would be seriously threatened as the gangsters in Vietnam are different than those from Hong Kong and that they are cruel and violent and disregard the law.  She also disagreed with the Director of Immigration that she could be internally relocated owing to poor health and the fact that she would be disadvantaged in the labour market.  She further asserted that the gangsters would be able to locate her new residence given their connections with the government and police.  She then asserted that the Immigration Department did not consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

7.  In her supporting affirmation filed on 25 April 2023, the applicant contended that the decision made by the High Court was reached unfairly without allowing her an opportunity to clarify her case and situation in her country.  She also asserted that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and that merits of such ground constitute sufficient reasons to justify the court to exercise its discretion to allow this appeal out of time.  However, the applicant failed to point out or give any particulars as to what the alleged ground of appeal was.

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

9.  At the outset, it is noted that a delay of over six months is extremely substantial and she failed to give any reason, let alone good reason, for her delay.

10.  More importantly, the contents raised in her Notice of Motion and supporting affirmation are all general, bare and vague without any specific particulars.  She also failed to identify any specific error in the Judgment with particulars.  Clearly, her arguments do not constitute viable grounds of appeal and her intended appeal is a non-starter.

11.  In any event, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].

12.  Moreover, 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.

13.  Accordingly, 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.

14.  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 69/2022

[2022] HKCA 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 69 OF 2022

(ON APPEAL FROM HCAL NO 1276 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  set out in the Form CALL-1 dated 26 January 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 301).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 18 August 2021 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 November 2020 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 8 February 2022, the applicant indicated her consent for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam.  She last entered Hong Kong illegally on 8 June 2020.  On 20 June 2020, she was arrested by the police for illegal remaining and breach of deportation order.  On 2 July 2020, she raised her second non-refoulement claim on the basis that she would be harmed or killed by her creditor who was a leader of a triad society.[1]  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 30 November 2020, the Director rejected the applicant’s second non-refoulement claim.  His decision covered all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4] and persecution risk[5].  Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

6.  On 18 February 2021, the applicant appealed against the Director’s Decisions to the Board. The applicant attended a hearing before the Board on 5 August 2021.  The Board dismissed her appeal on 18 August 2021.  The Board found that the applicant failed to establish that she was indebted to a loan shark in the amount as claimed.  The Board also found that internal relocation would be available to the applicant. Having assessed the evidence, the Board considered that the applicant had failed to substantiate her claim on the applicable grounds and accordingly, his appeal was dismissed.

The Leave Decision

7.  On 10 September 2021, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In her Form 86 and supporting affirmation, the applicant did not state any ground of review.  In her supporting affirmation, she only stated that she could not return to Vietnam as her life would be in danger.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [10] - [13] of the Leave Decision:

“10. The applicant filed the leave application on 10/9/2021. She maintained that her life would be in danger if refouled. She disagreed with the TCAB decision.

11. In judicial review, it is the duty of the TCAB to ascertain the facts and assess credibility. This court seldom interferes.

12. The adjudicator had set out the legal principles in detail. He had considered the evidence thoroughly. The implausibility of the huge loan was obvious. The adjudicator was justified in rejecting the evidence. I agree with the decision of the adjudicator. There is no error of law or procedure.

Conclusion

13. In my judgment, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

The Appeal

9.  On 8 February 2022, the applicant filed a Notice of Appeal and a supporting affirmation in support of her appeal against the Leave Decision.  In her Notice of Appeal, she claimed that the gravity of her circumstances had not been weighed or realised by the Director and the Board while considering her non-refoulement claim and that she should be given an opportunity to plead her case properly.  In her supporting affirmation, she further claimed that she would face the risks of being tortured or killed by her creditor as she could not repay her loan and that she could not return to Vietnam.

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 8 February 2022, the applicant lodged her written submissions on 17 February 2022.  In those submissions, she repeated the alleged factual basis and procedural history of her non-refoulement claim.  She then cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She further referred to R v Ministry of Defence ex p Smith[1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  She also claimed that her life would be seriously threatened or killed by the gangsters in Vietnam as they were cruel and violent and she could not repay her debt.  She also asserted that the Immigration Department did not consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights and ordered for her deportation.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

12.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  At the outset, nowhere in her Notice of Appeal, supporting affirmation or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  Her complaints are mainly directed at the Board and the Director. The allegations raised in her written submissions were also new and not raised before the Deputy Judge.  It is not permissible to run such new complaints in the appeal: Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Gurpreet Singh[2021] HKCA 1740 at [15].

14.  In any event, her allegations have no substance.  Her allegations are bare, vague and unsupported by specific particulars.  More importantly, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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 Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

15.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant acting in person