Case Detail

CAMP 292 /2022, [2023] HKCA 1025

On appeal from [2021] HKCFI 3910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 292 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1501 OF 2021)

________________________

BETWEEN
	Hoang Thi Muoi	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and G Lam JA in Court

Date of Judgment:

11 September 2023

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 18 January 2023 ([2023] HKCA 74). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 30 December 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 23 March 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper.

3. The applicant is a national of Vietnam. She entered Hong Kong illegally on 20 November 2019 and surrendered to the Immigration Department. She raised a non-refoulement claim on 26 March 2020 on the basis that she would be harmed or killed by her creditors if she is returned to Vietnam.

4. She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 27 July 2022 ^{^[1]}.

5. On 8 August 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 18 January 2023 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6. The applicant stated the following grounds in the Notice of Motion filed on 9 March 2023:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board and the Director of Immigration.
(2)  If the applicant returns to Vietnam, her life will be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.
(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.
(4)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

7. In her affirmation, she further contended that the court’s decision was reached unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

Analysis and disposition

8. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

9. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

10. The applicant was late for more than 3 weeks in filing the Notice of Motion. As she did not provide any explanation for the delay, there is no good ground for the court to exercise its discretion to grant extension of time to file her Notice of Motion.

11. In any event, the applicant’s grounds are not supported by evidence. She has not demonstrated that the Court of Appeal was wrong in dismissing her application. In particular, the Court of Appeal was entitled to determine her application for extension of time to appeal without a hearing on the basis of written submissions only. The applicant was given the opportunity to lodge written submissions in support of her application but she only filed an affirmation without lodging any written submissions. Besides, she failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12. For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 9 March 2023.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2226

CAMP 292/2022

[2023] HKCA 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 292 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1501 OF 2021)

________________________

BETWEEN
	Hoang Thi Muoi	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and G Lam JA in Court

Date of Judgment:

18 January 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 30 December 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2. On 27 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there is no merit in the intended appeal[2]. The applicant did not appear before the judge.

3. On 8 August 2022, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the Order dated 30 December 2021.

4. The applicant is a national of Vietnam. She is 56 years old. She entered Hong Kong illegally on 20 November 2019 and having surrendered to the Immigration Department, she raised a non-refoulement claim on 26 March 2020 on the basis that she would be harmed or killed by her creditors if she is returned to Vietnam.

5. By a Notice of Decision dated 26 July 2021, the Director rejected the applicant’s claim on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk [5] and persecution risk[6].

6. The applicant appealed against the Director’s decision and an oral hearing of the appeal before the Board was held on 24 September 2021. She gave oral evidence at the hearing. The Board found various discrepancies in her evidence compared to her answers in the Non-refoulement Claim Form submitted to the Immigration Department. She could not explain why she would leave her hospital job in Vietnam when she was able to save up her salary and did not encounter any trouble from her creditors in order to come to Hong Kong, knowing full well it would be illegal to take up employment here as an asylum seeker. The Board also found it incredible that the applicant accumulated a debt of 700 million Vietnamese Dong within three years of her fruit trading business, as she should have realised within three months that she was running a losing business and should not have carried on borrowing money when she was clearly not able to make ends meet. The applicant was unable to provide any documentary evidence in support of this alleged loan and fruit retail business. In summary, the Board found the applicant’s claim that she might be harmed or killed by creditors if she is returned to Vietnam exaggerated and unreliable. In any event, there was an absence of any official involvement of the state and internal relocation was not unreasonable. In light of its findings, the Board dismissed the applicant’s appeal on 22 October 2021.

The judge’s decision

7. On 29 October 2021, the applicant filed a Form 86 for leave to apply for judicial review against the decision of the Board. As summarised by the judge[7], she put forward the following grounds for her intended challenge:

“(1) that the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test as her right to life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;
(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim as the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;
(3) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI [Country of Origin Information] but failed to take the Applicant’s personal background and experience into account;
(4) that the Director failed to consider or give sufficient weight to the COI which supported the Applicant’s case that the police in her home country would not be able to protect and ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;
(5) that the Director failed to attain high standards of fairness in failing to consider the fact that corruption and incompetency of the police and the administration in the Applicant’s home country which various human rights organizations had compiled reports that stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law;
(6) that the Adjudicator was procedurally improper and unfair when assessing whether to accept explanation provided by the Applicant and unreasonably required her to respond to questions which she was not in a position to offer any response;
(7) that the Adjudicator failed to take into account the nexus of political parties and official corruption which existed in the Applicant’s home country making persecution effectively persecution by the state; and
(8) that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and hence the decision is irrational.”

8. The applicant requested a hearing in her Form 86 and the court scheduled a hearing for the leave application. However, she was absent in open court. The judge therefore decided the matter on paper.

9. The judge found the applicant’s grounds above were all just broad and vague assertions without any explanation on how they are applicable to her case. As such, her assertions were not reasonably arguable for the intended challenge. The judge bore in mind that the evaluation of the risk of harm is primarily a matter for the Director and the Board, which they are entitled to make based on the evidence before them. The court will not usurp their role as primary decision makers in the absence of legal error or procedural unfairness or irrationality in the Wednesbury sense. As the judge did not find any error of law or procedural unfairness in the decisions of the Director and the Board, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim, he was not satisfied there was any prospect of success in the intended challenge. The judge therefore dismissed the applicant’s application on 30 December 2021.

Grounds of appeal

10. In the applicant’s summons, she merely stated that she sought leave to appeal the judge’s order of 30 December 2021 out of time and asked for leave “to advance a new sole ground of appeal”. She did not elaborate on what the new sole ground of appeal was.

11. In her supporting affirmation, she basically repeated what she had deposed in her affirmation before the judge in the application for extension of time to file a Notice of Appeal, namely that she did not receive the court documents. Again, there was no mention of what the new sole ground of appeal was.

12. The applicant has not lodged any written submissions within time or at all. Pursuant to the directions of the Registrar of Civil Appeals dated 8 August 2022, any party who fails to lodge written submissions within time is deemed to have abandoned his or her right to rely on written submissions.

Analysis and disposition

13. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 30 December 2021. The applicant took out a summons in the court below on 17 January 2022. She was late for 4 days. As the delay was not substantial, we shall focus on the merits of the intended appeal.

15. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

16. 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 decision of 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 it is a fresh application for judicial review.

17. The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave against her to bring judicial review. She asked for leave to advance a new sole ground of appeal but did not specify what that ground was. In any event, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

18. As there is no prospect of success in the applicant’s intended appeal, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 30 December 2021 and dismiss the summons filed on 8 August 2022.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3910

[2] [2022] HKCFI 2226

[3] 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.

[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 being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] 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.

[7] [2021] HKCFI 3910 at §7

HOANG THI MUOI v. TORTURE CLAIMS APPEAL BOARD

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