Nguyen Ngoc Thiem and Others v. Torture Claims Appeal Board

HCAL 2019/2018

[2021] HKCFI 3386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2019 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The Applicants are a married couple and their twin daughters all of Vietnamese nationality who entered Hong Kong illegally on 13 July 2015 and surrendered to the Immigration Department on the following day. On 31 August 2015, they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would suffer discrimination or persecution by the Vietnamese government due to the husband’s Chinese ethnicity.  They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born as an ethnic Chinese in 1962 and was raised in Xa Dam Ha, Huyen Dam Ha, Tinh Quang Ninh, Vietnam.  After leaving school he worked as a fisherman and lived on a boat in his home district where he and his parents were treated as outcasts by their fellow villagers after the Sino-Vietnamese war in 1979, and one day his parents were taken away by the police for reason unknown to A1 and were never seen or heard again, while A1 also had his home taken away and could not renew his identity card and was restricted only to a small area to fish or to be allowed to sell his catch in the market.     

3.In 1989 A1 married the 2^nd Applicant (“A2”) who is ethnic Vietnamese, and raised a family of three children, an elder son now an adult, and their twin daughters, the 3^rd and 4^th Applicant (“A3” & “A4”) now aged 16 but were not given any formal education in Vietnam because of the Chinese ethnicity of their father.

4.As a result of such discriminations suffered by him and his family, A1 in April 2015 departed Vietnam with his wife and daughters for China, and from there they later sneaked into Hong Kong and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 29 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 23 August 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the Vietnamese government upon their return to Vietnam as low due to the absence of any reliable evidence of any past ill-treatment from the Vietnamese authorities, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Vietnam which prohibit discrimination against ethnic minorities, that any existing societal discriminations against ethnic minorities have in general not reached the level of being persecutory or otherwise inhuman or degrading treatment and that the government has undertaken special programs to improve the situations in rural communities and villages and to continue to allocate land to ethnic minorities in the Central Highlands through some special programs and to address the socioeconomic gap in ethnic minorities by subsidizing education and health facilities and expanding road access and electrification of rural communities and villages, and that there is a functional judicial system in place in Vietnam with the authorities willing and able to provide reasonable and sufficient protection to the citizens and to take actions against culprits for committing offences against the law, and that reasonable internal relocation alternatives are also available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his family to other part of Vietnam away from his home district in large cities such as Thanh Hoa where they can settle without any risk of any harm or persecution of any sort upon their return to Vietnam.

7.By a Notice of Further Decision dated 9 October 2017 the Director found that the Applicants failed to establish any personal and real risk of their absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon their return to Vietnam and therefore also dismissed their BOR 2 claim.

8.By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 6 September 2016, and for which they attended an oral hearing on 14 May 2018 before the Board during which both A1 and A2 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 21 September 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found no reliable evidence from the Applicants including oral evidence from A1 and A2 in support of their claim of discrimination or persecution by the Vietnamese government or authorities or the community in general against them due to A1’s Chinese ethnicity, nor had they ever approached the government or authorities for household registration or assistances all these years, that any problems which they might have over job, housing, health or education opportunities were in fact due to A1’s failure to approach the relevant authorities for registration including for his own identity card which he had on his own volition failed to renew by proper registration for more than 30 years, that there is no evidence that they had been targeted by or of interest to the Vietnamese government or authorities due to A1’s Chinese ethnicity, and that relevant COI show that there are laws in Vietnam that prohibit discrimination against ethnic minorities, and while societal discriminations may persist in some areas the government has made considerable efforts to combat them and to provide protection to citizens in general that they have not risen to the level of being persecutory or otherwise inhuman or degrading treatment, and have various programs in place to address the cause of discontents amongst ethnic minorities and to improve education, health and road access in rural communities and villages as well as allocating land to ethnic minorities in the Central Highlands and to address the socioeconomic gap amongst ethnic minorities that it concluded that the Applicants have failed to establish their claim of fear of risk of being subjected to discrimination or persecution upon their return to Vietnam that their claim for non-refoulement protection failed on all applicable grounds.     

10.On 24 September 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he just repeated their claim of fear of discrimination and persecution from the Vietnamese government due to his Chinese ethnicity but without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable grounds for their intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicants’ case, the Board rejected their claim for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 79 of its decision with the benefit of hearing both A1 and A2 in their oral evidence and their answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board which had in my judgment correctly found no evidence of any discrimination or persecution against the Applicants by the Vietnamese government and authorities, and that any problems which they might have experienced in the past were self-inflicted by A1’s own failure to undergo proper registrations for himself or his household with the relevant authorities required by the law for the population, and for which I am unable to find any reasonably arguable basis or merits in their intended application for judicial review.        

13.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.

14.I am of course mindful of the fact that A3 and A4 are both minors still at age 16 were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that for the claims of minors it would be necessary to separately consider and examine whether their cases have been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board, as the proper approach held by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may reach the level of persecution in the case of an adult may do so in the case of a minor.

15.In the present case, the claims of A3 and A4 were premised fundamentally on their father’s claim of risk of discrimination and persecution due to his Chinese ethnicity, but which have been found by the Board and based on his own evidence to have been caused by A1’s own refusal or failure to undergo proper personal and household registrations with the various authorities for himself and the family or to seek assistance from the government and without any evidence that there were any discriminations or persecutions by the Vietnamese government or non-state agencies that I am unable to see any material which may give rise to concern of any minor-specific non-refoulement grounds that might not have been advanced to the Board or considered by it because of the lack of legal representation for them before the Board.

16.As such and as I find that the intended judicial review of A3 and A4 also has no arguable merit, I shall therefore treat the absence of legal representation for them in these proceedings as a mere irregularity, as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.     

17.In the premises, and for the reasons given I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 11^th day of November 2021.

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