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

HCAL 3018/2019

[2025] HKCFI 3439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3018 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 Applicant being absent in open court;

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

2.   Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant, aged 44, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 7.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 30 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed the Notice of Decision dated 1 March 2017 (“the Director’s 1^st Decision”) and Notice of Further Decision dated 15 March 2019 (“the Director’s 2^nd Decision”).  The Director’s 1^st Decision dismissed the mother’s application for non-refoulement claim; and the Director’s 2^nd Decision dismissed the daughter’s application for non-refoulement claim.  Their joint application relies upon the facts of the 1^st applicant.

3.  The applicants requested a hearing.  However, the applicants were absent at the hearing on 11 June 2025.  I shall deal with their application on the papers.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants                                                                                     

5.  The 1^st applicant is a national of Vietnam.  She came to Hong Kong illegally in July 2015.  The 2^nd applicant was born on 29 August 2018 in Hong Kong.  But she has not obtained permanent residency in Hong Kong.

6.  On 20 July 2015, the 1^st applicant surrendered to the Immigration Department.  She admitted that she sneaked into Hong Kong by boat illegally on 15 July 2017.  By written signification, she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the creditor, Nga and her subordinates because she was unable to repay the loans.

7.  According to the 1^st applicant, she was running her business of selling clothes in Vietnam.  In 2013, one of her friends asked her to borrow loans for her to building a hotel on a piece of land.  She showed her a land certificate as proof.  The applicant trusted this friend and borrowed altogether 5,500 million Vietnamese Dongs from one of her customers.  She had charged her house and motor vehicles for the loans.  She had also paid the interest installments for her friend.  At one stage, she discovered that the land certificate was a forged document and she had been scammed by her friend.  Her friend was charged, convicted and sentenced to 15 years’ imprisonment.  The creditor demanded repayment of the loans.  She was unable to pay.  The creditor brought with her some people to her shop where they vandalized it.  They assaulted her by pulling her hair and hit her head against the wall.  They had also cut her wrist with a broken glass.  She moved to live in her friend’s place, but she was located by the subordinates of the creditor, who took her back to the creditor where she was assaulted again.  The creditor threatened that she had to work as a prostitute and sell dangerous drug for repayment of her loans, otherwise she would harm her children.  The applicant was forced to agree.  However, before the agent of prostitution arrived, she escaped and went to China, from where she came to Hong Kong.  Details of her story are set out in paragraph 6 of the Director’s 1^st Decision.

The Director’s Decisions

8.  The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   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”);

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”).

9.  By way of the Director’s 1^st Decision, the Director assessed the 1^st applicant’s claim and dismissed her claim.  The Director found that: (i) from her past experiences in Vietnam, the risk of her being harmed or killed was assessed to be low as the state was not involved and the harm done by the creditor and her subordinates were not sever enough for BOR 3 risk; (ii) state protection would be available; and (iii) internal relocation would be viable. [10]-[21]

10.  By way of the Director’s 2^nd Decision, the Director dismissed the 2^nd applicant’s claim on the same basis as she relied upon the facts of her mother.

The Board’s Decision

11.  The applicants appealed the Director’s Decisions to the Board.  On 26 July 2019, the Board conducted an oral hearing for their appeals.

12.  Having considered the evidence, the Board dismissed their appeals and confirmed the Director’s Decisions for the reasons below.

(1)  The state was not involved in this case. [7]-[9]

(2)  There was no evidence of severe pain and physical or mental suffering reaching the minimum level of severity on the duration of treatment, its physical or mental effects. [10]-[13]

(3)  Internal relocation is viable. [14]-[18]

(4)  Unreasonable delay in raising a torture claim – a delay of 5 days. [32]

(5)  Dishonesty for illegal entry into Hong Kong by climbing through a hole in the border wire. [32]

13.  It therefore dismissed their appeal and confirmed the Director’s Decision.   See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003018_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review

14.  The applicants filed Form 86 on 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  It is apparent that the applicants were not legally represented before the Board.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation.  The Board did not have separate consideration for the 2^nd applicant.  The question will then be where there were any child-specific issues before the Board, which can be seen by this Court.

19.  The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held that if the Board had attained high standards of fairness 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 .”

20.  The Court of Appeal in Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024 held:

“17. In the present case, the 3rd applicant’s claim is premised fundamentally and entirely on the 1st applicant’s claim. In light of the Board’s rejection of the 1st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1st applicant’s claim that there is no basis to support the 3rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18.  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 3rd applicant.  In the circumstances, although the Board did not appear to have separately considered the 3rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.” 

21.  Finally, the Court of Appeal in Re Penol, Sally Barsolaso & Diggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29.  In the premises, we do not find the 2nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

22.  Up till now, there is no complaint of any child specific issue, which the Board did not separately consider because of no legal representation for the 2^nd applicant.  I am unable to find any such child-specific issue in this application myself.

23.  For the Board’s reasons rejecting the applicants’ appeals, I find that grounds (1) to (3) are strong enough without relying on grounds (4) and (5).  Ground (4) is delay, which is a matter of 5 days only.  The 1^st applicant explained that she did not know the procedure and did not find a policeman during this period.  I consider that this is possible, given the fact that the 1^st applicant was aware of her illegal entry into Hong Kong and she might not deliberately try to locate a policeman within that period of time. The Board’s comment on her is too harsh.  Ground (4) is dishonesty on the part of the 1^st applicant.  The Board referred to section 37 ZD(3) of the Ordinance, which refers to any other behaviour of the applicant as damaging her credibility.  I do not share the Board’s view that her illegal sneaking into Hong Kong should be taken into account in the assessment of her credibility, otherwise, this factor can be applied across the board and becomes redundant.  In my view, the conduct should be for her act of making her application for non-refoulement claim, such as producing a forged document or telling lies to the immigration officer, which is not the situation in this case.

24.  However, those 2 grounds will not affect the other grounds on which the Board relied to dismiss their appeals.

25.  For the reasons above, I find that the applicants have failed to show that there is any realistic prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

26.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.

27.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

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