HUA THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1210/2019

[2024] HKCFI 1928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1210 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;

1.   Leave for the applicants to apply for Judicial Review of the Board’s Decision be granted; and

2.   The applicants must issue the originating summons for their application for judicial review of the Board’s Decision in accordance with Order 53 rule 5 of the RHC within 14 days after the grant of leave.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant Mother and the 2^nd applicant Son, aged 7, jointly apply for leave to apply for judicial review of the Decision dated 10 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision on A2”), which dismissed the applicants’ appeal against the Director’s Decision rejecting their claim for non-refoulement.

2.  As the 2^nd applicant is a minor, a hearing was fixed for the applicants to attend a hearing. However, the notice of hearing was subsequently returned from the Post Office. Upon enquiry with the Immigration Department, the applicants have moved to a new address.

3.  On 26 February 2024, another notice of hearing was sent to the last known address with the new hearing date of 27 May 2024. The notice was not returned from the Post Office and the applicants were deemed to have receive the notice on 28 February 2024[1].

4.  The applicants were absent on the date of hearing. I shall deal with their application on paper.

The applicants

5.  The applicants are nationals of Vietnam.  The 1^st applicant was arrested by the Hong Kong police on 29 October 2013.  On 21 July 2014, she lodged a non-refoulement claim.  On 10 December 2016, she gave birth to the 2^nd applicant.  On 2 March 2018, the 1^st applicant lodged a non-refoulement claim for the 2^nd applicant.  Their claims were made on the same basis that, if refouled, they would be harmed or killed by her ex-boyfriend’s wife Hau and her creditor Nguyen Thi Hoa. 

6.  According to the 1^st applicant, she had an extramarital affair with a man called Phan Dinh Lap.  Phan was married to Hau.  In February 2013, Hau found the 1^st applicant, and together with Hau’s friends, Hau assaulted the 1^st applicant with wooden sticks, scissors and safety helmets. Hau threatened the applicant to leave her husband of she would kill her and would burn her face with corrosive acid. The applicant did not report the matter to police. She went back home and her parents were ashamed of her.  Phan comforted her and said that he would divorce Hau. Hau brought six or seven men to the 1^st applicant’s house, destroyed her properties and threatened to kill her if she refused to leave Phan.  The next day, the 1^st applicant reported the incident to the police but it was of no avail. 

7.  As the 1^st applicant’s parents felt ashamed about the affair, the 1^st applicant went to live with her friend Hoa.  Later, she borrowed 55 million Vietnam Dongs from Hoa and her people and at the assistance of Hoa, the 1^st applicant fled to Hong Kong.  While she was in Hong Kong, she received messages from Hoa asking for the repayments.  Feared that Hau and Hoa would harm them, the applicants decided to seek protection in Hong Kong.  Details of their claims are set out at paragraph 7 of the Notice of Decision dated 31 July 2018 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 their claims. In elaboration, the Director found that (i) the risk of harm from Hau was assessed to be low [14]-[16]; (ii) the dispute with Hoa was a private monetary one without state involvement and there was no evidence that the creditor was powerful to locate them everywhere [17]-[18]; (iii) state protection would be available to them [19]-[22]; and (iv) internal relocation was a viable option [23]-[28].

The Board’s Decision

10.  The applicants appealed the Director’s Decision to the Board. On 29 March 2019, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave oral evidence [23].

11.  The Board recapped the applicants’ claims [24]-[43].  It considered at length the country of origin information (“COI”) and found that state protection would be available to the applicants [49]-[62].  In this premise, the Board concluded that the applicants’ claims under Persecution risk failed. Meanwhile, the Board also found that the 1^st applicant had sustained no injuries and the nature and extent of the injuries indicated that there were no ill-treatments attaining to the minimum level of severity [72].  In addition, there was no state acquiescence [75]-[81].

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 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the 1^st applicant’s affirmation in support of their joint application, the 1^st applicant had raised the following reasons:

(1)   In the Board’s Decision, paragraphs 49-60 (COI), which stated that the Vietnam government can provide protection for its citizens’ safety and property. 　This is to ignore her submissions by way of other COI that the Vietnam government is still very corrupt and incompetent. Furthermore, the UN Express on 17 October 2016 reported that a Vietnam leader had admitted that high level government officials were corrupt, practicing cronyism. This shows that the Board was in error.

(2)   In assessment BOR 3 risk [70] – [73], the Board was in error to say that the Vietnam government was able to provide protection for the applicants. The Board was also in error to pass its judgment on the injuries that the 1^st applicant had suffered by the brutal beating by her creditor and his subordinates. The 1^st applicant considers that if she and her child return to Vietnam, the creditor may kill them. The Board had put the threshold for BOR 3 too high.

(3)   In assessment the Torture risk [77], the Board took the view that the higher authorities might not be corrupt at all. This is contrary to the fact that the prime minister of Vietnam resigned as a result of his admission of the officials of various government departments. The Board therefore underestimated the applicants’ risk.

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.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  For the reasons below, the 1^st applicant’s application will be allowed and her reasons raised in paragraph 12 will not be necessary to be considered at this stage.

19.  The Board’s Decision dated 10 April 2019 had not taken into account that separate consideration should be given to the minor’s claim. The Court of Appeal authority of Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 which 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.”

20.  Although the Board’s Decision was made before the Court of Appeal’s decisions, the legal principles remained the same at the time of the Board’s Decision.

21.  The Board had not even considered the 2^nd applicant’s claim separately. It is clearly an error of law.

22.  This is a joint application. The 2^nd applicant’s claim is clearly relevant to the 1^st applicant’s claim as the facts are in common between them. The Board had not taken into consideration of the 2^nd applicant’s claim into account when it considered the 1^st  applicant’s claim. As such, it is clearly in breach of the legal principle as referred to by the Court of Final Appeal in Re C & Others v Director of Immigration & Secretary for Security & Another (2013) 16 HKCFAR 280, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Sir Anthony Mason NPJ, 25 March 2013. At paragraph 22 of the judgment, the Court of Final Appeal said:

“. … Also, the law requires, and the legislature must have intended, that the Director would take into consideration relevant matters, and ignore irrelevant matters. This is how Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1KB 223, at 229 described this requirement:

‘For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law.  He must call his own attention to the matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to what he has to consider.  If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”

23.  In the circumstances, the applicants have a realistic prospect in their intended judicial review of the Board’s Decision.

CONCLUSION

24.  I grant leave for the applicants to apply for judicial review of the Board’s Decision. The applicants must issue the originating summons for their application for judicial review of the Board’s Decision in accordance with Order 53 rule 5 of the RHC within 14 days after the grant of leave.

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