Phung Thi Sen and Another v. Torture Claims Appeal Board

HCAL 471/2024

[2024] HKCFI 2893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 471 OF 2024

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 the 1st and 2nd Applicants (“the Applicants”) in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   Extension of time for the application of the 2^nd Applicant for leave to apply for Judicial Review be granted;

2.   Leave for the 2^nd Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 January 2020 be granted;

3.   The 1^st Applicant on behalf of the 2^nd Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

4.   The 1^st Applicant on behalf of the 2^nd Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 49-year-old national of Vietnam who entered Hong Kong illegally on 21 October 2014 and was arrested by police on the same day. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.A1 was born and raised in Tien Lang County, Hai Phong City, Vietnam. After leaving school she married her husband and raised a family with 2 children in her home district.

3.In 2008 she and her husband started to run a tailor shop with the help of a loan borrowed from a local money-lender, but later when they failed to repay their loan, they were threatened and assaulted by men sent by their creditor, and after her husband had run away from home and disappeared, A1 on 19 October 2014 departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection to the Immigration Department.

4.By a Notice of Decision dated 17 June 2016 and a Notice of Further Decision dated 18 August 2017, the Director of Immigration (“Director”) rejected A1’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

5.In his decisions the Director took into account of all the relevant circumstances of A1’s claim and assessed the level of risk of harm from her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to A1 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population 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 to other areas of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

6.A1 then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and by a decision dated 17 November 2017 the Board dismissed her appeal after hearing her in evidence and having grave concerns about the credibility of her claim, and found in any event in the absence of any official involvement that state or police protection would be available to her upon her return to Vietnam to negate any such risk of harm from her creditor even if it was real, and that the Board also confirmed the Director’s decision.

7.A1’s subsequent late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 16 June 2021 upon finding no good reasons for her serious delay, that none of her proposed grounds for her intended challenge were reasonably arguable, that there was no error of law or irrationality or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended challenge given the findings by both the Director and the Board that even if her claimed risk were real that it arose from some private monetary dispute between her and her creditor only without any official involvement that state protection would as available to her as well as reasonable internal relocation, as found by the Director and confirmed by the Board, to negate her claimed risk (HCAL 1314/2018 [2021] HKCFI 1706), while her appeal against the Court’s decision was also dismissed by the Court of Appeal on 26 January 2022 for void of merits (CACV 318/2021[2022] HKCA 147).

8.Meanwhile back in 2016 while being released on recognizance pending the determination of her claim, A1 formed a relationship with another Vietnamese man in Hong Kong by the name of Le Van Truyen (“LVT”) who was also a non-refoulement claimant released on recognizance pending the determination of his own claim based also on risk of harm from his creditor over his own debts, and on 21 February 2017 A1 gave birth to their son, the 2^nd Applicant herein (“A2”), and for whom A1 also subsequently raised a non-refoulement claim on the same bases of her claim and of LVT’s claim, and for which she also completed a NCF on 19 December 2018 on behalf of A2 and attended another screening interview before an immigration officer with legal representation from Duty Lawyer Service (“DLS”).

9.By a Decision dated 23 January 2019 the Director similarly rejected A2’s non-refoulement claim on all the applicable grounds upon taking into account of all the relevant circumstances of A2 as well as of his parents, and similarly assessed the level of risk of harm from his parents’ creditors upon A2’s return with her mother to Vietnam as low due to the low intensity and frequency of past ill-treatments from them to her parents and the absence of any such past ill-treatment to A2 at all, and that in the absence of any official involvement that state or police protection would be available to A2 as well as reasonable internal relocation for him to move safely with his mother to other areas of the country away from the home districts of his parents without any risk of being located by either of their creditors.

10.On 31 January 2019 both parents of A2 lodged an appeal on his behalf to the Board against the Director’s decision, for which the Board did not hold any oral hearing and just dealt with his appeal on paper, and upon taking into consideration of all the documents and materials available before it including the previous decisions of the Board which rejected his parents’ claims respectively on 17 November 2017 (his mother’s claim by another adjudicator) and 2 August 2019 (his father’s claim by the same adjudicator dealing with A2’s appeal), and on the basis that A2 relied on the same claims of his parents which had already been rejected, the Board also dismissed A2’s appeal, and confirmed the Director’s decision.                  

11.On 14 March 2024 his mother A1 filed a Form 86 for A2 to seek leave to apply for judicial review of the Board’s decision, and although she also named herself as the 1^st Applicant, given the fact that this decision of the Board only concerned A2’s appeal while A1’s own application for judicial review had earlier already been disposed of by this Court, and as A1 explained in her letter dated 15 March 2024 that she filed the Form 86 for A2 only but somehow believed that she needed to also be named as the 1^st Applicant in his application. Accordingly I shall treat this as A2’s application only issued on his behalf by his mother as A1 for leave to apply for judicial review of the Board’s decision, and for which A1 has put forward the following grounds for his intended challenge:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from the killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account A2’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported A2’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against A2’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account A2’s argument that corruption and incompetency of the administration in his country is still a very serious problem as various human rights organizations had compiled reports that stated testament to his assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept A2’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator made a ruling to dismiss A2’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.     

12.In addition, A1 also in her supporting statement dated 19 March 2024 submits that as A2 was born in Hong Kong and has been attending school here that she fears that his refoulement would affect his education while the Vietnamese government will not allow him to have human rights and free speech.

13.By then A2 was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for him to file his Form 86 fell on 24 April 2020, A2 was therefore more than 3 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the case of A2, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which no explanation or reasons has been provided by his mother in the Form or affirmation, but given that he is a minor at the present age of 7 years only and without legal representation, I propose to focus on the merits of his intended application.      

16.However, those grounds put forward by his mother as listed above are just bare and vague assertions containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, nor was his mother able to provide any further clarifications or elaborations at the hearing of his application.

17.Nevertheless, given the seriousness of the issue at hand and the fact that A2 is a minor without legal representation in his appeal before the Board, or for that matter in his application now before me, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for rejecting A2’s claim, of which the Court of Appeal has held in Fabio Arlyn Timogan [2020] HKCA 971 and in Re Jasvir Singh & Others [2021] HKCA 53 that non-refoulement claims by children even if based on the same set of primary facts are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children and matters which may support potential minor-specific non-refoulement bases but may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board.

18.In the present case regarding A2’s claim, the Board as noted above did not hold any oral hearing for his appeal, and rejected his claim essentially by agreeing with the previous decisions of the Board which had rejected his parents’ appeals, albeit it was the same Adjudicator in the case of his father (see [41] – [45] of the decision), and in rejecting the various supporting documentary evidence submitted by his parents on his behalf as not credible or reliable or inconsistent without raising those issues to them or giving them any notice that the credibility on those evidence would be impeached so that they may have the opportunity of replying to, explaining or otherwise dealing with those aspects of their evidence, and of which the Court of Appeal has held in Re Masud MD [2021] HKCA 1449 may amount to procedural unfairness.

19.More importantly, it seems to me that the Board in rejecting A2’s claim essentially on the bases that both of his parents’ claims had earlier already been rejected without separately considering his claim with regard to his personal circumstances and matters that may support potential non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation, as stipulated in Fabio as the necessary approach towards non-refoulement claims by minor children as noted above, such as the facts that A2 was an illegitimate child born to a mother still being married to her husband in Vietnam who was not his father, and that he was born in Hong Kong and receiving education here without ever been to Vietnam, and which may lead to risk or problems that may arise upon his return with his mother to Vietnam, but which the Board did not appear to have taken into consideration properly or at all.

20.For these reasons I am of the view that A2’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (1) the Board acted procedurally unfair in rejecting the credibility of A2’s claim without holding any oral hearing and/or giving any notice to his parents that the credibility of some of his supporting evidence would be impeached or called into questions and/or to give them an opportunity to respond; and (2) that the Board erred in law in failing to separately and adequately consider the personal circumstances and matters of A2 for any potential non-refoulement bases in dismissing his appeal essentially on the basis that his parents’ claims had earlier already been rejected by the Board, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.               

21.In the premises, I extend time to the late application of A2 and grant leave to him to apply for judicial review of the Board’s decision on the grounds stated above, and direct that A1 shall on his behalf file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 24^th day of October 2024

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