TO THI CHAU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1799/2019 and
HCAL 1740/2020
(Consolidated)

[2024] HKCFI 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1799 OF 2019

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1740 of 2020

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 3 April 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 Applicant in HCAL 1799/2019 and the 1st and 2nd Applicants in HCAL 1740/2020 in open court and the 3rd Applicant in HCAL 1740/2020 being excused (collectively “the Applicants”);

1.  HCAL 1799/2019 be consolidated with HCAL 1740/2020; and   

2.  Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

1.  The Applicant (“A1”) in the first application under HCAL 1799/2019 is the mother of the 2^nd and 3^rd Applicants (“A2” and “A3”) in the later HCAL 1740/2020 subsequently issued by her on their behalf, and as their non-refoulement claims are based on the same the of primary facts of A1’s fear of harm from her creditors over her unpaid debts upon their return to their home country in Vietnam, and which were assessed by the same Adjudicator of the Torture Claims Appeal Board (“Board”), I propose to consolidate their two applications for determination jointly together.

A1’s Non-refoulement Claim

2.  A1 is a 35-year-old national of Vietnam who previously in 2004 arrived in Hong Kong as a visitor but was subsequently deported after being charged and convicted of the offence of handling stolen properties and upon serving her imprisonment, entered Hong Kong again on 25 December 2015 illegally and then surrendered to the Immigration Department on 4 January 2016 when 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 creditors over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

3.  A1 was born and raised in Cam Pha City, Quang Ninh Province, Vietnam. After leaving school she worked as a hawker, married her husband and raised a family with 2 children, including A2 a son born on 15 February 2002, in her home district.

4.  In early 2008 she and her husband started their own fish farm business by borrowing a loan from a local money-lender to be repaid within one year and with monthly interest payments until discharge of the loan, which they managed to do from their business income.

5.  As their business was not doing well, and to continue running the business they borrowed another loan from a different money-lender in late 2008 to be repaid by end of 2010 and with monthly interest payments until discharge of the loan.

6.  However, by late 2009 they were unable to keep their business, and in 2010 when they defaulted with their loans repayments, their creditors started to send their men to threaten and beat them, and on one occasion one of the creditors abducted their son A2 who was released only after A1 and her husband had repaid part of the loan with help from their relatives.

7.  As the threats and harassments persisted, and in May 2011 one of the creditors made some false charges against A1 by bribing some officials that she was sent to prison for several years for illegal gambling.

8.  Upon her discharge from prison in December 2015, A1 fled from her home village to hide in a relative’s home in another city in Quang Ninh Province, and on 22 December 2015 she went to Mong Cai where she departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 June 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any subsequent screening interview before the Immigration department.

Director’s Decisions on A1’s Claim

9.  By a Notice of Decision dated 29 July 2016 the Director of Immigration (“Director”) rejected A1’s 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 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”).

10.  In his decision the Director took into account of all the relevant circumstances of A1’s claim and assessed the level of risk of harm from her creditors 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 them to seriously harm or kill her other than to press her to repay her debts, that in any event these were private disputes between her and her creditors 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 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 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 creditors to locate her.

11.  On 11 November 2016 the Director on his own initiative invited A1 to submit additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after receiving no response or reply from her, the Director by a Notice of Further Decision dated 30 November 2016 also rejected A1’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon her return to Vietnam.

A1’s Appeal to the Board

12.  On 15 May 2018 A1 lodged an appeal to the Board against the Director’s decisions, but as it was filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of A1’s Notice of Appeal, and by two decisions both dated 16 April 2019 the Board refused the application of A1 for late filing of her Notice of Appeal against the Director’s decisions.

13.  In its decisions the Board found the filing of A1’s Notice of Appeal were some 17 months and 20 months late against the respective decisions of the Director, that her explanation of then serving imprisonment was not acceptable for such serious delays, and that there were no other matters known to the Board that might amount to special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal.

Non-refoulement Claims of A2 and A3

14.  Meanwhile and going back earlier in time when she was released on recognizance by the Director pending the determination of her non-refoulement claim, A1 formed a relationship with another Vietnamese man in Hong Kong, and out of which she on 15 April 2018 gave birth to a daughter A3.

15.  As for her son A2 who was born and raised in Vietnam, and prior to her departure for Hong Kong also witnessed incidents of men coming to their home to threaten his mother over her debts, and was on one occasion in early 2010 when he was 8 years old abducted by some of those men and was only released after his mother had paid money to those men.

16.  In 2011 A2 was placed in the care of some relatives after his mother was put in prison, and upon her subsequent release from prison she then departed Vietnam for Hong Kong without further news, but as her creditors continued to look for her by coming to A2’s home to harass and intimidate him, and with the help of his relatives A2 on 20 October 2018 departed Vietnam for China, and from there he then sneaked into Hong Kong, and by accident he later ran into A1 in a park near her residence and reunited with her who then brought him to surrender to the Immigration Department and raised a non-refoulement claim for him together with A3 on the same basis of A1, and for which A1 completed a NCF jointly for them on 29 January 2019 and attended screening interview with legal representation from DLS.

17.  By a Decision dated 28 February 2019 the Director also rejected their claims on all the applicable grounds after taking into account of all the relevant circumstances of their claims as well as that of A1 and assessed the risk of harm from their mother’s creditors upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatments from them, that there is no evidence of any real intention of them to harm or kill them other than to press their mother to repay her debts or that they may have any knowledge of the existence of A3 who has never been to Vietnam, that in any event these were private monetary disputes between their mother and her creditors only without any official involvement that state or police protection would be available to them upon their return to Vietnam if so required, and that relevant COI also show that reasonable internal relocation alternatives are also available in Vietnam with a large population of 97 million people spread across a vast territory of more than 331,999 square kilometers that it would not be unduly harsh for them to move safely with their mother to other part of the country away from their mother’s home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for their mother’s creditors to locate them.

18.  On 14 March 2019 A1 lodged an appeal for A2 and A3 to the Board against the Director’s decision, and for which she together with A2 attended an oral hearing on 23 July 2019 before the same Adjudicator who had earlier refused to allow her application for the late filing of her own appeal, and during which both A1 and A2 who was then aged 17 elected not to give further evidence after adopting those contained in the hearing bundle or to answer questions from the Board.

19.  By a Decision dated 24 June 2020 the Board dismissed the appeal of A2 and A3 upon finding material inconsistencies discrepancies and implausibility in their claims as disclosed by their mother in the materials and information contained in the hearing bundle which they failed to clarify or explain when their mother or A2 elected not to give further evidence or to answer questions raised of their claims before the Board that it doubted the credibility of their claim of fear of harm from A1’s creditors that caused them to seek non-refoulement protection in Hong Kong, that even if such risk from those creditors were real that there is no reliable evidence of any real intention of them to seriously harm or kill either of them in particularly when A3 has never been to Vietnam or that they would know anything about her, that in the absence of any official involvement in what were essentially private monetary disputes between their mother and her creditors that state or police protection would be available to both of them and their mother upon returning to Vietnam as well as reasonable internal relocation for A2 being born and raised in Vietnam to return to his home district on his own or to move with A3 and their mother to other part of the country away from A1’s home district without any risk of being located that their claims for non-refoulement protection failed on all the applicable grounds.

A1’s Leave Application for Judicial Review under HCAL 1799/2019

20.  Meanwhile on 28 June 2019 A1 filed her Form 86 for leave to apply for judicial review of the Board’s decision as regard her own case, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim of fear of harm from her creditors without putting forth any proper ground for her intended challenge of the Board’s decision in refusing to allow the late filing of her Notice of Appeal, but it is clear that in arriving at such decision the Board had failed to take account of the merits of her appeal which has been held to be part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Immigration Ordinance: see Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 530.

21.  However, notwithstanding such failure, for reasons will be apparent below, it would not in my view ultimately assist A1 in her leave application to challenge the Board’s decision.

Leave Application by A2 and A3 for Judicial Review under HCAL 1740/2020

22.  On 28 August 2020 A1 also filed a Form 86 for A2 and A3 for leave to apply for judicial review of the Board’s Decision of 24 June 2020, and again no ground for seeking relief was given in their Form or in her supporting affirmation in which she again just repeated their claims as before of their fear of harm from her creditors if refouled to Vietnam but without putting forth any proper ground for their intended challenge. 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 them or on their behalves, I do not find any reasonably arguable basis for their intended challenge either.

23.  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.

24.  In the case of A2 and A3, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in their claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

25.  Which thus brought me back to the A1’s intended challenge of the Board’s failure to take account of the merits of her appeal when it refused to allow the late filing of her Notice of Appeal, as noted above that the same Board did subsequently and properly do so in its assessment and determination of her children’s claims based on the same primary facts as in her own claim, and given the correct findings as to the availability of state protection and internal relocation made by the Board as analyzed above, it would not in my view assist her case or to justify allowing her to apply for judicial review of the Board’s refusal to allow the late filing of her Notice of Appeal when it would no doubt arrive at the same conclusion of rejecting her non-refoulement claim.

26.  I am also mindful of the fact that both A2 and A3 were minors without legal representation in their appeal before the Board, although A2 was then already 17 and now 22, and that A3 is still only 5 years old and also without legal representation in this application before the Court as required by Order 80 rule 2 of the Rules of the High Court, and hence their non-refoulement claims must be considered by the Board separately from their mother’s claim notwithstanding that they were based on the same set of primary facts, and that the Court needs to be satisfied that the Board had in so doing achieved high standards of fairness with regard to their personal circumstances, and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to lack of legal representation for them: see Fabio Arlyn Timogan [2020] HKCA 971.

27.  As noted above the Board did in my view properly do so as regard the personal circumstances of both A2 and A3 in its assessment of their respective claims, and given the fact that both were born to Vietnamese parents albeit different father, and that A2 was in fact born and raised in Vietnam, I am satisfied that there are no underlying matters of racial ethnical or religious nature which might support minor-specific non-refoulement grounds for either of them but had not been advanced before the Board due to lack of legal representation for them.

28.  In the premises, and for the given reasons I am not satisfied that there is any prospect of success in the Applicants’ intended applications for judicial review, I therefore refuse to grant leave to any of them to apply for judicial review of either of the Board’s decisions, and accordingly dismiss their leave applications respectively under HCAL 1799/2019 and HCAL 1740/2020.

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