RE NGUYEN VAN ANH AND ANOTHER

CACV 403/2022, [2023] HKCA 1356

On appeal from [2022] HKCFI 2996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 403 OF 2022

(ON APPEAL FROM HCAL NO. 1090 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Lung (“the Judge”) given on 29 September 2022[1] refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decision of the Director of Immigration (“the Director”) which refused their non-refoulement claims.

2.  The 1^st applicant on behalf of herself and the 2^nd applicant have consented on 6 October 2022 for the appeal to be determined on the papers without an oral hearing. She has also lodged a written submission to support their appeal.

The applicants’ claim

3.  The 1^st and 2^nd applicants are mother and daughter. The 1^st applicant is a national of Vietnam. She entered Hong Kong illegally and was arrested by the police on 28 July 2015. She lodged a non-refoulement claim on 25 August 2015. On 23 February 2016, she gave birth to the 2^nd applicant in Hong Kong. On 5 August 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant.

4.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by the 1^st applicant’s creditor Thanh (“Thanh”), due to the 1^st applicant’s failure to repay her debt. The details of the applicants’ claims are set out at [16] of the Board’s Decision. In gist, the 1^st applicant claimed that she had borrowed a loan from Thanh to start an aquatic breeding business with her ex-boyfriend; in May 2015 the aquatic farm was destroyed during a tornado and she could not repay her loan; Thanh assaulted and injured her and her ex-boyfriend and pressurised them to make repayment; their report to the police was to no avail; and she fled to Hong Kong for protection. The 1^st applicant also claimed that it was during her way to Hong Kong that she discovered she was pregnant; when she informed her ex-boyfriend about the pregnancy, he questioned her about the identity of the baby’s father which upset and angered her; and she has not contacted him since.

The Director’s decision

5.  The applicants were represented by the Duty Lawyer Service in relation to their claims before the Director. By a Notice of Decision dated 24 November 2017, the Director dismissed the applicants’ claim having regard to the torture risk[2], persecution risk[3], BOR 3 risk[4] and BOR 2 risk[5] grounds. In short, the Direct considered there were no substantial grounds to believe that the applicants would be harmed or killed by Thanh upon refoulement. The Director found that the injury sustained by the 1^st applicant did not attain a minimum level of severity, and that Thanh and his men were only chasing for repayment and had no real interest to harm the 1^st applicant or anyone else. Further, in light of the country-of-origin information (COI), state protection and internal relocation options were reasonably available to the applicants.

The Board’s Decision

6.  The applicants appealed to the Board against the Director’s decision[6]. An oral hearing was held on 27 March 2019 during which the 1^st applicant testified for herself and on behalf of the 2^nd applicant with the assistance of an interpreter. By a decision dated 15 April 2019, the Board dismissed the appeal.

7.  The Board rejected the entirety of the 1^st applicant’s claim as being incredible, having regard to the available COI and after careful analysis[7]. In particular, the Board considered it was implausible that the 1^st applicant, who had no prior experience in aquatic farming business and had a low creditworthiness, could have raised a large loan and on such terms with Thanh[8]. Her evidence on the location of the aquatic farm was inconsistent[9]. She also had little or no knowledge of the personal details of her-boyfriend, including what he did for a living, and gave evasive and illogical answers in explaining he reason for refusing to disclose his identity[10]. The Board did not accept it was probable that Thanh or his men would try to track down the 1^st applicant if she returned to Vietnam, as the evidence showed that they only deployed crude and unsophisticated methods of debt recovery[11]. Like the Director, the Board considered, on the basis of the available COI, that a reasonable level of state protection was available to the applicants and that internal relocation to Ho Chi Minh City or to other suitable places was a viable option for the applicants[12]. The Board concluded that the applicants’ failed to satisfy the level of risk of harm as well as the requirements for affording non-refoulement protection.

The Judge’s decision

8.  On 24 April 2019, the 1^st applicant filed a Form 86 on behalf of herself and the 2^nd applicant to apply for leave to judicially review the Board’s Decision. Other than repeating in the supporting affirmation her reasons for coming to Hong Kong, the 1^st applicant had not set out any grounds for seeking relief. The Judge held an oral hearing on 4 July 2022, which was attended by only the 1^st applicant. By A Form CALL-1 dated 29 September 2022, the Judge refused to grant leave to apply for judicial review for the reasons he gave in [13] to [23] as follows:

“13. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14(1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she wants to stay in Hong Kong with her daughter because she cannot pay off her debt in Vietnam.

15. It is clear that the Director and the Board had considered the applicants’ claim as a composite claim without separate consideration for the 2^nd applicant specifically.

16. However, in paragraph 204 of the Board’s Decision, the Board, after a comprehensive analysis of the facts of the case, came to its conclusion:

“I do not consider the 1^st Claimant to be a credible witness in general. I do not accept the substance of her narrative to be true. By way of illustration, I do not accept that the 1^st Claimant had ever been the proprietress of an aquatic farm. I do not accept that the 1^st Claimant had obtained any loan from Thanh. I do not accept Thanh to be a real, as opposed to be a fictitious, character. I do not accept that the 1^st Claimant had ever been ill-treated, assaulted or threatened by Thanh and his men. I do not accept that the 1^st Claimant had made a complaint to the police of Vietnam. I do not accept that the 1^st and 2^nd Claimants will be at any risk whatsoever.”

17. The Court of Appeal in Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77, 18 January 20 (sic) held:

“21. In the present case, the 2^nd and 3^rd Applicants’ claims were premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd and/or 3^rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.”

The Court of Appeal upheld the Judge of the Court of the First Instance’s decision as pointed out in the Court of Appeal’s judgment:

“11. Pausing here, it is of note that although the Board did not appear to have considered the 2^nd and 3^rd Applicants’ claims separately from their mother’s claim, the Judge considered that in view of the Board’s finding that there were no genuine fear or risk of harm in relation to the 1^st Applicant, it was unnecessary for the Board to consider the impact of such fear and risk in relation to the 2^nd and 3^rd Applicants which called for protection.”

18. The Court of Appeal had also made the same decision on the same bases in Nguyen Ngoc Thiem & Others v. Torture Claims Appeal Board and Director of Immigration [2022] HKCA 1119, 3 August 2022 at §§16-19 and in Yuni Agustin Ningsih and Bhagat Michelle Vania v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 1121, 3 August 2022 at §§22 – 25.

19. The rationale of the above Court of Appeal cases applies to the present case. The 1^st applicant’s claim fails because the Board disbelieved her evidence and rejected her claim. I cannot see any child specific issue which should have, but have not been advanced to the Board because of lack of legal representation for the 2^nd applicant before the Board. It follows that the 2^nd applicant will not succeed in her claim alone.

20. The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22. The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.”

“  23. I treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity under Order 2 of the RHC without rendering the 2^nd applicant’s appeal a nullity. I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.”

This appeal

9.  On 6 October 2022, the 1^st applicant filed a Notice of Appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision. The Notice of Appeal reiterated the factual basis of the applicants’ claim, and complained that the Immigration Department failed to consider their human rights. Other than this, it did not set out any ground for challenging the Judge’s decision.

10.  On 7 October 2022, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and was required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on her behalf, including possibly an application for legal aid, to rectify the position. After a lapse of four months, noting that no steps had been taken by the applicants, the Registrar of Civil Appeal directed on 10 January 2023 that the appeal be proceeded with.

11.  On 27 January 2023, the 1^st applicant lodged a written submission on behalf of herself and the 2^nd applicant. The submission essentially repeated the applicants’ personal background, their immigration history and the basis of their claims, and also quoted extensively from decisions on high standards of fairness and Wesnesbury unreasonableness. It also stated that the 1^st applicant was born and raised in Hong Kong until December 1997 when she and her family were repatriated to Vietnam; she could not attend school and had to work in Vietnam to make a living; and she was pursued by her creditor due to her inability to repay the loan as a result of the failure of her business. The written submission also argued that internal relocation was not viable because they would face many difficulties and obstacles; the 1^st applicant’s competitiveness in the labour market was low as she had to take care of the 2^nd applicant; and the gangsters with their nationwide network and connections with officials and law enforcement agents would be able to track down the 1^st applicant. It complained that the Director had failed to have regard for the applicants’ human rights.

Our reasons for decision

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

14.  In relation to the 1^st applicant’s appeal, neither the Notice of Appeal nor the written submission has pointed to any error in the Judge’s decision or the reasons he gave for his decision. Moreover, as noted above, the Board rejected the entirety of the 1^st applicant’s claim based on the implausibility of her evidence as evaluated against the available COI. The Board did not consider the 1^st applicant to be a credible witness and found that she had failed to satisfy the threshold of risk of harm as required for non-refoulement protection. We do not accept that the matters stated in the Notice of Appeal and the written submission has shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational. They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons. In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision. As the 1^st applicant’s appeal has no merits, we dismiss it.

15.  In the case of the 2^nd applicant, she is a minor. The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33]:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) 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 circumstance of each claimant;

(2) 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;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] ‑ [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

16.  In the present case, the 2^nd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of her claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd applicant’s claim.

17.  We also agree with the Judge that on the materials available to the court, they do not disclose any possible concern that there may be non-refoulement grounds that relate specifically and solely to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 2^nd applicant before the Board. In the circumstances, although the Board did not appear to have separately considered the 2^nd applicant’s claim, we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.

18.  We treat the non-compliance with Order 80 rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd applicant’s appeal a nullity. As the 2^nd applicant’s appeal has no merits, we dismiss it.