Nguyen Hoang Viet and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 847/2019

[2023] HKCFI 2506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 847 of 2019

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 Applicants being absent in open court;

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

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The 1^st applicant and the 2^nd applicants are husband and wife (“the Husband and Wife”); the 3^rd applicant is the daughter, born on 16 January 2015, aged about 8.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 22 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The 3^rd applicant’s claim is based upon the facts of her parents.

3.Since the 3^rd applicant is a minor, a hearing was fixed for the applicants to take place on 20 March 2023. However, the applicants were absent without prior notice to the Court. Their joint application is therefore dealt with on paper.

4.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, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

5.The applicants are nationals of Vietnam.  The 1^st applicant (Husband) last entered Hong Kong illegally on 22 June 2014 and was arrested by the Hong Kong Police on 24 June 2014.  On 28 June 2014 and 4 July 2014, he lodged a non-refoulement claim.  On 11 November 2014, the Wife surrendered to the Immigration Department and also lodged a non-refoulement claim.  On 16 January 2015, the 3^rd applicant (Daughter) was born in Hong Kong.  On 8 April 2015, the 2^nd applicant lodged a non-refoulement claim on the behalf of the 3^rd applicant. 

6.In accordance with a letter dated 6 February 2017, the applicants’ duty lawyer requested that their claims should be assessed together.  Their claims were made on the same basis that, if refouled, they would be harmed or killed by the creditor Nguyen Van Quynh due to the outstanding debt. 

7.In brevity, the Husband and Wife wanted to start their own hair salon. In November 2012, they borrowed a loan from the creditor as their startup funds.  Initially, they were able to repay the monthly interests.  However, since March 2013, they had been defaulting the payments.  In mid-April 2013, the creditor started chasing for repayment.  At the beginning, he only telephoned the couple and reminded them of the outstanding payments.  Yet, in June and August 2013 respectively, the creditor brought his followers to visit the couple’s house and hair salon.  They threatened the Wife and also assaulted the Husband once with bare hand.  Out of fear, they eventually fled to Hong Kong for protection.  Details of the applicants’ claims are set out at paragraph 7 of the Notice of Decision dated 1 March 2017 by the Director (the “Director’s Decision”).  

The Director’s Decision

8.The Director considered the applicants’ claims in relation to the following risks:

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

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

(3)  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

(4)  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”).

9.By way of the Director’s Decision, the Director dismissed the applicants’ claims.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[17]; (ii) state protection could be available to them [18]-[20]; and (iii) internal relocation was a viable option for them [21]-[29].

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board.  On 31 January 2019, the Board conducted an oral hearing for their appeals, during which the Husband and Wife testified [4].

11.Having considered the evidence, the Board found that it was a private dispute which was not inflicted by the state agent or approved by official or state acquiescence [7]-[8]; that there was no pain or sufferings that attained the requisite level of severity [9]-[12]; [22]; that state protection and internal relocation, according to the country of origin information, were both available to the applicants [13]-[18]; [28].  Independently assessing the applicants’ claims, the Board found that the applicants’ evidence was unreliable and thus their claims not credible [30]-[33].

12.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the 1^st and the 2^nd applicants’ joint affirmation in support of their joint application, they said that they believe that if the family return to Vietnam, their creditor may inflict more serious harm and may even kill them because they are unable to repay the debt.

DISCUSSION

15.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 applicants’ 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).

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

17.It is clear that the applicants were unrepresented before the Board and the Director and the Board had considered the applicants’ claim as a composite claim, contrary to the requirement of separate consideration of the child’s claim as set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

18.The question is whether, because the 3^rd applicant being not legally represented and her claim was not separately considered by the Board, leave should be given to the applicants to apply for judicial review of the Board’s Decision.

19.There are two sets of decisions by the Court of Appeal.

20.The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director [2022] HKCA 1121, Hon G Lam and Chow JJA, 3 August 2022, for the same reasons that the minor was unrepresented before the Board and the Board considered their claims as a composite claim, held:

“22. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, found the 1st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24. In the premises, we also find that the 2nd Applicant’s intended judicial review is not reasonably arguable.”

21.On the other hand, in another Court of Appeal case Siti Naisah Tasya Stephanie, a minor, by her next friend and mother, Siti Naisah v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director [2023] HKCA 336, Hon Chu VP and Barma JA, 15 March 2023, the Court of Appeal, on the same situation that the child was not legally represented and the Board had considered the claims as a composite claim, has made a different decision under the following circumstances:

“13. The Board found the claim of the applicant’s mother incredible and unreliable, the level of risk was low as she could divorce S and internal relocation and state protection were reasonably available, and her problem with S was a private dispute with no state or official involvement. It accordingly dismissed their appeals on all applicable grounds.

21. Firstly, … Neither the Director nor the Board had given separate and independent assessment of the applicant’s claim. Both the Director’s decision and the Board’s decision had only focused on the case of the applicant’s mother’s and had not separately considered the applicant’s personal circumstances or minor-specific risks that may be relevant to her.

24. Secondly, we are of the view that in the circumstances of this case and in light of the discussions above, consideration should be given to providing the applicant with legal representation in her appeal before the Board, instead of being represented by her mother. In this regard, it is relevant to note that the applicant’s personal particulars and circumstances had not been accurately stated in the NCF, which was filled in by her mother. For instance, it stated that the applicant is of Indonesian citizenship and nationality and her country of habitual residence is Indonesia, when on the established facts she was born in Hong Kong, had never been to Indonesia and her nationality has not been established. The NCF further stated that the applicant is Javanese and her religion is Islam when on her mother’s evidence, which the Board did not reject, her father is an Indian. (emphasis added)

26. Thirdly, there is force in Mr Wong’s submission that, notwithstanding the contents of the applicant’s claim and NCF, which were put forward by her mother, the Board’s jurisdiction under the statutory scheme is not restricted to the parameters of what was presented in the NCF.  Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that Article 3 of the Hong Kong Bill of Right Ordinance, Cap. 343 and other relevant non-derogable rights are given meaningful protection.  The Board is required to exercise its powers to fulfil this positive duty: Chan Ki Kau v Commissioner of Police [2030] [sic] 5 HKLRD 653, at [73] to [75].  The Board is also required to ensure that high standards of procedural fairness are met before making its decision and should act to remedy any fundamental failings of the Director: Re Moshin Ali [2018] HKCA 549 at [35] to [45].  In the present case, it would appear that the Board had not conducted its independent enquiry into whether the applicant’s case required separate consideration and assessment.  It had not addressed and remedied the Director’s error in treating and assessing the applicant’s claim and her mother’s claim as one composite claim, and had further fallen into the same error in taking the view that as the appeal of the applicant’s mother failed, the applicant’s appeal also failed.”     

22.In the 1^st Court of Appeal case, the Court of Appeal considered that it did not “see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.”  On that basis, the Court of Appeal dismissed the applicants’ appeal.

23.In the 2^nd Court of Appeal case, the Court of Appeal had taken into consideration that the nationality of the minor was in question as she was born in Hong Kong and her religion was also in question because her father is an Indian. These are the materials obvious to the Board. It is because of those features of the case that trigger the obligation of the Board to make investigation into the matters concerning the child as the applicants were not legally represented before the Board. Absent such obvious evidence or materials, the Board would not be able to start the investigation by making wild guesses. The main theme of the Court of Appeal judgment is that legal representation should be granted to the minor before the Board in order to protect the minor’s interest.

24.In this case, those special features as in the 2^nd Court of Appeal case are absent. The Board had found as the fact of the case that the parents were unable to establish any real risk of being harmed or killed by their creditor if they return to Vietnam. They may have state protection and relocation alternative option if they return to Vietnam. There is no material that may give rise to a concern that there may be non-refoulement grounds that related specifically to the 3^rd applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before Board.

25.For the same reasons as in the 1^st Court of Appeal case, I therefore find that the applicants fail to establish that they have any realistic prospect of success in their intended applicant for judicial review of the Board’s Decision.

CONCLUSION

26.Accordingly, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision and I dismiss their application.

Dated the 12^th day of October 2023

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