PHAM THI TUYET AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2141/2018

[2022] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2141 of 2018

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are mother and daughter.  The daughter was born on 6 April 2000 (she was almost 18 years old at the time of the oral hearing before the Board, namely, on 7 February 2018). 

2.  The applicants jointly applied for leave to apply for judicial review of the Decision dated 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

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 applicants

4.  The applicants are nationals of Vietnam.  The 1^st applicant came to Hong Kong on 1 July 1991 but her application for refugee was rejected on 6 September 1993.  On 24 April 1996, she married a Hong Kong resident.  On 23 May 1997, she returned to Vietnam voluntarily.  She entered Hong Kong illegally again in 1999 and was arrested and sentenced to imprisonment.  In 2000, she gave birth to the 2^nd applicant while serving her sentence.  On 28 August 2000, the applicants were deported to Vietnam.  Thereafter, on 15 June 2015, the applicants entered Hong Kong illegally.  On 26 August 2015, she surrendered to the Immigration Department and lodged a non-refoulement claim for her own and on behalf of her daughter. Her daughter’s claim was made entirely on the basis of hers.  The 1^st applicant’s claim was based on the fear that, if refouled, they would be harmed or killed by the creditor Dao Ba Sac (“Sac”) and her daughter would be forced to become a prostitute because she could not repay the loan.

5.  According to the 1^st applicant, she was defrauded into joining an investment scheme in 2011, which caused her monetary losses and her inability to repay the loan she borrowed.  Starting the end of 2012, Sac and his followers came to her house and demanded for repayment.  They threatened to kill them and force her daughter to become a prostitute if she failed to repay.  A week later, they visited her house and made threats again.  Yet, the 1^st applicant confirmed that they did not have any physical acts against the applicants.  Out of fear, she moved internally in Vietnam before the applicants eventually came to Hong Kong for protection.  Details of their story can be found at paragraph 7 of the Notice of Decision dated 13 January 2016 by the Director (“the Director’s First Decision”) and paragraphs 6 to 12 of the Board’s Decision described below. 

The Director’s Decisions

6.  The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

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 the Director’s First Decision, the Director refused their claims on the grounds of Persecution risk, Torture risk and BOR3 risk for the reason that their claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of the applicants being harmed or killed by Sac or the alleged gangsters if they returned to Vietnam [20]; that state protection was available to them [21]-[25]; internal relocation was an option open to them [26]-[31].  In the Notice of Further Decision dated 17 August 2017, the Director also rejected their claims on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that their right to life would be violated upon their return to Vietnam. 

8.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

9.  The applicants appealed the Director’s Decisions to the Board.  On 7 February 2018 when the scheduled oral hearing was to be held, the applicants were absent from the hearing and failed to provide written explanations for their absence as directed.  The Board proceeded to consider their appeal on paper [5]. 

10.  The Board assessed the 1^st applicant’s claim.  It found that, considering the 1^st applicant’s case as a whole, she failed to establish that she or the 2^nd applicant had suffered the injuries attained the level of severity [22]-[24]; that the dispute with Sac was private in nature without state involvement [25]-[33]; that, on the available country of origin information (“COI”), state protection was sufficient to the 1^st applicant [34]-[42].  It will be useful to note the finding of the Board in relation to the 1^st applicant’s case. In paragraph 42 of the Board’s Decision, the adjudicator found:

“… I find AP1 fails to establish there are sustain [sustainable] ground for believing that she will be in danger if she returned to Vietnam, even if there is, there is available state protection to AP1. I find AP1 failed to establish in evidence that there is risk for AP1 to return to Vietnam.”

For these reasons, the Board refused to accept the 1^st applicant’s claim on the applicable grounds [43]-[62].  Thus, the Board dismissed their appeal.

Application for leave to apply for judicial review

11.  The applicants filed Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of their joint application, she said “…If we refouled to Vietnam, we will be face a genuine and substantial risk of being subject to torture or even killed by the creditor and his underlings since we can’t pay back the debt…”.

DISCUSSION

13.  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 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

“(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child.”

14.  Bearing in mind of the above authority, I consider that, for the reasons below, although the Board had considered the applicants’ appeal as a composite claim without giving separate consideration to the personal circumstances of the 2^nd applicant’s claim, there is no reason to remit the case to the Torture Claims Board for re-assessment.

(1)  The authority above applies to those cases where the Board accepted the facts that the mother and the child would be subjected to any of the risks they claimed in paragraph 6 above. Where the Board found that the 1^st applicant’s case to be groundless or was a fabrication, the 1^st applicant had no factual basis in support of her claim, the child’s case will inevitably collapse.

(2)  The Director and the Board found that state protection and internal relocation were available to the 1^st applicant, the same should be available to the 2^nd applicant too. In the circumstances, it will serve no practical purpose for the 2^nd applicant’s case to be re-assessed again.

(3)  Even if the 2^nd applicant’s case is remitted to the Torture Claims Appeal Board for re-assessment, the 2^nd applicant will be of age when the case is heard before the Board. See paragraph 1 above. The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 at §176 held that the 2^nd applicant’s risk should be assessed at the time of the proceedings:

“In the Strasbourg context, the Court went on to state that the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.

It will be futile to assessment her case as if she was first before the Board.

15.  For the reasons above, I find that there is no reasonable prospect of success in the applicants’ intended application of judicial review of the Board’s Decision.

CONCLUSION

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

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