Tran Van Hao v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1448/2018

[2021] HKCFI 3690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1448 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

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

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).  The applicant lodged his claim together with his wife and two sons with the Immigration Department and they also appealed to the Board in their joint appeal.  However, for reasons unknown, only the applicant made this application.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of Vietnam.  Before the Director and the Board, he made a joint application with his wife, his second son (date of birth was on 4 November 2003) and his third son (date of birth was on 28 August 2012).  The applicant entered Hong Kong illegally on 3 March 2014 and surrendered to the Immigration Department on 17 March 2014. His wife entered Hong Kong illegally on 3 December 2013 and surrendered to the Immigration Department on 17 December 2013.  Later, on 12 April 2016, she accompanied her two sons and surrendered to the Immigration Department.  On 14 March 2014, 15 April 2016 and 15 April 2016, they lodged the non-refoulement claim respectively and their claims were proceeded to be a joint application as it was based on the applicant’s non-refoulement claim.  

5.The applicant claimed that if refouled, he would be harmed or killed by five money lenders who would also abduct his sons or even kill his wife. According to the applicant, in around 2012, his wife borrowed one billion VND from five female money lenders for their fishing business.  On 14 July 2013, their fishing vessel sank and business failed.  As they defaulted payments, the five money lenders started to chase for money in April and May 2012.  However, they confirmed that the money lenders had never damaged their house or attacked their family members.  On 1 December 2013, his wife fled to Hong Kong to avoid the money lenders.  Later, since the money lenders continued to visit them, the applicant and two younger sons also fled to Hong Kong.  Details of his story are set out in paragraph 8 of the Director’s Decision described below and paragraphs 4-17 of the Board’s Decision.

The Director’s Decision

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

a.   risk of torture under Part VII C 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”).

7.By Notice of Decision dated 28 October 2016 (“the Director’s Decision”), the Director refused their claims for the reason that their claims were not substantiated. The Director found that the level of risk of them being harmed or killed by the money lenders upon refoulement was assessed to be low [17]-[23]; that state protection was available to them [24]-[28] and that internal relocation was an option open to them [29]-[35].

The Board’s Decision

8.The applicants appealed against the Director’s Decision.  The Board scheduled an oral hearing for their appeal on 2 February 2018.  However, the applicants were all absent from the oral hearing.  The Board at paragraph 18 of its Decision posted questions that it required the applicants’ clarifications, such as why the applicants felt there was a real risk of harm despite the threats from the money lenders were only empty words and why the wife felt that only she was subject to real risk of harm, as well as why the applicants refused to seek help from the police.  Since the applicants did not show up at the hearing, the Board concluded that “I cannot help but conclude that the Claimants are not willing to come forward to stand by their case. I refuse to give any weight to information provided by the Claimant to the Department. In such circumstances, and though the standard of proof required of the Claimants is low, the Claims are not made out.” [19(A)].  Further, the Board also held that internal relocation was a viable option as “there is nothing to indicate any of the money lenders will be able to locate the Claimants in other parts of Vietnam.” [19(B)].  Thus, the Board dismissed the applicants’ appeal.

Application for leave to apply for judicial review

9.The applicant filed Form 86 dated 24 July 2018 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, he said “…If my family and I go back to Vietnam now, the creditor and his underlings will be inflicted more serious harm or even kill me and my family members….”

DISCUSSION

11.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.There are 2 observations in relation to the Board’s Decision.

14.The first observation is in relation to the procedure under the Ordinance for the Board to consider the appeal in the absence of the applicant, which should be stated in its Decision so as to enable the Court to determine whether there was any procedural irregularity in the proceedings before the Board.

15.In Nir Das v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCFI 1906, this Court held that the Board has to comply with section 15 of Schedule 1A of the Ordinance for hearing of the appeal in the absence of the applicant.  Section 15 of Schedule 1A provides:

“(1) If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2) Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must—

(a) give the party written notice of the Board’s intention to do so; and

(b) state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.

(3) If the Appeal Board—

(a) has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b) is not satisfied with the party’s written explanation or supporting documentary evidence,

the Board may determine the appeal by making a decision under section 23(1) of this Schedule despite the party’s absence at the hearing.

(4)      If the Appeal Board is satisfied, on the basis of the party’s written explanation and supporting documentary evidence (if any) submitted under subsection (2)(b), that the failure to attend was due to reasonable cause, the Board may fix a date, time and place for hearing the appeal.”

16.The Board has not, in its Decision, set out the above procedural requirements of proving service of the hearing notice, giving written notice to the applicant to make representation on the reasons for his absence before making the decision of hearing the appeal in the absence of the applicant.

17.Obviously, this is a procedural irregularity.

18.The second observation is that the Court of Appeal in Re Hidayah [2018] HKCA 595, held that where the applicant was absent and the Board was unable to determine the credibility of the applicant’s evidence, it has to proceed to analyze and assess his claim against all applicable grounds on the basis that his case is plausible.

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia.... ... Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

19.The Board refused to give any weight to the information provided by the claimant to the Immigration Department. It has not assessed his claim against all applicable grounds on the basis that his case is plausible, in which case, the Board has to give reasons for its assessment of the case.

20.For the irregularity of the procedure and the error of law above, the applicant has a realistic prospect of success in his intended judicial review.

CONCLUSION

21.I therefore grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant has to take out the originating summons for his application within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.

Dated the 15^th day of December 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