Nguyen Van Vinh and Others v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1670/2018

[2020] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1670 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicants:

THE APPLICATION

1.The applicants are a family. This is the applicants’ joint ex parte application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The first and the second applicants are husband and wife. The other applicants are their children. They made submissions on behalf of themselves and their children.

3.The applicants are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicants had a fair screening before the Immigration officer and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the first and the second applicants appeared before this Court.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by adding the Director of Immigration (“the Director”) as the interested party.

The applicants

5.The applicants are nationals of Vietnam. The first applicant came to Hong Kong illegally through China on 14 January 2015. He was arrested by police on 24 January 2015. The second applicant and her two children, the third and the fourth applicants came to Hong Kong on 24 January 2015 illegally. They were arrested by police on 26 January 2015. The fifth applicant was born in Hong Kong. All applicants sought non‑refoulement protection. As the first applicant is the father representing the family, his evidence on the facts, unless otherwise stated, applies to all other applicants.

6.The first applicant claimed that if refouled, he would be harmed or even killed by his creditor because he had borrowed from the creditor some 1.7 billion Vietnamese currency for his business, which had failed, and he was unable to repay the debts. The creditor had sent people to his home and pressed for repayment. When he was unable to pay, they assaulted him. One of them had used a knife to injure his left arm.

The Director’s Decisions

7.The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

8.By Notice of Decision dated 15 July 2016 and another Notice of Further Decision dated 18 August 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was unsubstantiated. The Director took the view that the level of risks as alleged by him if he returned to Vietnam was low [12]; state protection would be available to him [16] and internal relocation was an option open to him [20]. His claim on BOR 2 risk was not established.

The Board’ Decision

9.The applicants appealed to the Board, but they failed to attend the hearing. The Adjudicator was satisfied that due notice had been given to the applicants. The Adjudicator then gave notice to the applicants at their last known address, telling them that the Board intended to determine the appeals in their absence, stating that they might, within 7 days, submit a written explanation to the Board giving their reasons for their absence. This was done in compliance with section 15 (1) and (2) of Schedule 1A of the Ordinance.

10.No written explanation was received from the applicants. Pursuant to section 15(3) of Schedule 1A of the Ordinance, the Adjudicator proceeded to determine the appeals in their absence.

11.By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decisions.

12.The Board dismissed their appeal based upon the reasons below.

“9. The Appellants did not appear at the hearing. They have given no evidence to support what they have written in their Non-refoulement Claim Form, and I am unable therefore to decide on the credibility of their case.

10. It follows that I am unable to estimate what risks, if any, they face if they refouled to Vietnam or to decide whether or not they are entitled to non-refoulement under the provisions mentioned above.

11. Their claims therefore must be dismissed.”

Application for leave to apply for judicial review

13.The applicants applied for leave to apply for judicial review of the Board’s Decision.

14.In the affirmation of the 1^st and 2^nd applicants in support of their application, the applicants simply said that the creditor and his subordinates might inflict more serious harm to them as they had done so on 21 June 2017 in Hong Kong. They had also attached a medical reference letter issued by the Hospital Authority to the affirmation. In the medical report, it was stated that the first applicant was injured with penetrating abdominal wound and also over left loin and right upper back.

DISCUSSION

15.The applicants appeared before me. The first and the second applicants confirmed that they had had a fair interview with the Immigration officer and their lawyer had explained the Director’s Decisions to them. They did not appear before the Board because they had changed address without informing the Immigration Department. Therefore, they did not receive the Hearing Notice from the Board.

16.No doubt, they have the obligation to update the Immigration Department their address from time to time. If they failed to do so, they have to take the consequences themselves.

17.However, having considered the circumstances and for the reasons below, I will give leave to the applicants to apply for judicial review.

18.In the Board’s Decision, the Board said that without the applicants’ evidence, the Adjudicator was unable to assess the credibility of their evidence. I shall set out the unsolved issues below.

(1) The Board has not set out whether it had considered the Director’s Decisions under the tests to see if the decisions were reached reasonably.

(2) The Board has not set out which part of the evidence it was unclear and whether such part(s) are so vital as to render their claims failed.

(3) The Board has not set out the reasons why the Director’s Decisions should sustain.

CONCLUSION

19.For the above reasons, I grant leave to the applicants to apply for judicial review of the Board’s Decision. The applicants should take out the originating summons within 14 days from the date of this decision in accordance with the provisions of Order 53, rule 5 of the Rules of the High Court.

Dated the 15^th day of January 2020

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1