NGUYEN THI DUNG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 231/2024, [2025] HKCA 345

On appeal from [2024] HKCFI 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2024

(ON APPEAL FROM HCAL NO 1309 OF 2019)

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J U D G M E N T

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

1.  On 4 June 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicants to apply for judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims[1]. The applicants lodged a Notice of Appeal against the decision of the judge on 11 June 2024.

Background

2.  The 1^st and 2^nd applicants are nationals of Vietnam. They entered Hong Kong illegally on 28 September 2015. They surrendered to the Immigration Department and lodged a non-refoulement claim on 29 September 2015. Their claims were made on the basis that if they return to Vietnam they will be harmed or killed by their creditor and his men because they are unable to repay the debt.

3.  The 3^rd applicant is the daughter of the 1^st and 2^nd applicants. She was born in Hong Kong on 22 September 2022. The 1^st applicant lodged a non-refoulement on behalf of the 3^rd applicant on 30 December 2022, on the basis that she will be harmed or killed by her parents’ creditor upon her return to Vietnam.

The decisions of the Director

4.  By a Notice of Decision dated 22 March 2017, the Director of Immigration (“the Director”) rejected the non-refoulement claims of the 1^st and 2^nd applicants on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The 3^rd applicant’s non-refoulement claim was rejected by the Director on all applicable grounds by a Notice of Decision dated 15 March 2023.

The decisions of the Board

6.  The 1^st and 2^nd applicants appealed against the Director’s decision to the Board and attended the hearing before the Board on 26 September 2018. The Board considered there are grave doubts about the applicants’ credibility as their testimonies were contradictory and full of errors. The Board also found this is a case of monetary dispute without any evidence to show any involvement of the Vietnamese authority or police, even if assuming that the applicants were telling the truth. The Board further held that the applicants can relocate to other places within Vietnam to escape from the perceived risk, as the evidence showed they were safe after they had gone to Mong Cai. The Board concluded that the 1^st and 2^nd applicants failed to establish their claims on any of the applicable grounds and rejected the appeal on 10 May 2019.

7.  The hearing of the 3^rd applicant’s appeal was conducted before the Board on 10 August 2023 and the 1^st applicant attended the hearing on behalf of the 3^rd applicant. The Board found that the 1^st applicant kept changing her evidence and is not a credible witness. The Board did not accept the testimony of the 1^st applicant and found that it is just a bare assertion based on unsupported and unreliable claims, speculation and hearsay. In particular, the Board found that the 1^st applicant’s evidence relating to the facts on which the 3^rd applicant’s claim was based was questionable and unreliable, and there are also discrepancies and implausibility in the 1^st applicant’s testimony. Therefore, the Board did not accept that the 1^st and 3^rd applicants will suffer serious harm from the creditor as alleged.

8.  The Board has separately considered the claim of the 3^rd applicant. The Board found that she will have Vietnamese nationality upon her return to Vietnam and her sister who was living in Vietnam had never been harmed by the creditor or other people. The Board assessed that the 3^rd applicant would be safe to return to Vietnam. It also found there is Children Law to protect children’s right and reasonable state protection is available to the 3^rd applicant in Vietnam, which would further lower or negate any possible risk of harm. The Board further held it would not be unduly harsh for the 3^rd applicant to relocate to other places in Vietnam with her parents to avoid the perceived risk. Therefore, the Board decided that the 3^rd applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 28 September 2023.

The intended judicial review

9.  The 1^st and 2^nd applicants filed a Form 86 and an affirmation on 16 May 2019 to seek leave to apply for judicial review against the decision of the Board. The court granted leave for the 3^rd applicant to join their application. They put forward the following grounds for their intended challenge:

(1)  If they return to Vietnam, they will be seriously threatened or probably killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people;

(2)  The suggestion of the Director on internal relocation is completely unfeasible as the applicants will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police, it is quite possible for the creditor and gangsters to find out the applicants’ new residence.

The judge’s decision

10.  The 1^st and 2^nd applicants attended the hearing before DHCJ K W Lung on 6 March 2024. The 3^rd applicant was absent. The judge held that the applicants did not have any valid ground to challenge the Board’s first decision and no child specific issue was raised before the Board concerning the 3^rd applicant. The judge concluded there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 4 June 2024.

Grounds of appeal

11.  In the Notice of Appeal, the applicants stated the same grounds as those previously raised in the leave application at the court below and added that the Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

12.  They submitted a written consent for the appeal to be disposed of on paper without an oral hearing. Despite the directions given by the Registrar of Civil Appeals requiring the applicants to lodge written submissions on or before 1 November 2024, they did not lodge any written submissions.

Legal principles

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

15.  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 applicants. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

16.  The judge has given detailed explanation for rejecting the applicants’ application. The 1^st and 2^nd applicants failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. Thus, their appeal is devoid of merit and should be dismissed.

17.  However, it is necessary for the Court of Appeal to separately consider the position of the 3^rd applicant, as she is a minor and has not been legally represented in these proceedings as required under Order 80, Rule 2 of the Rules of the High Court (Cap 4A): Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

18.  The Registrar of Civil Appeals had directed that the minor applicant should act by a next friend and must act by a solicitor. However, the 3^rd applicant’s application for legal aid has been refused and no further steps have been taken on her behalf to comply with Order 80 rule 2 of the Rules of the High Court for the appointment of next friend. Notwithstanding this, the 3^rd applicant’s appeal may be allowed to stand as the Court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at §27.

19.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan (Supra) and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  Non-refoulement claims by minors, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the minors;

(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 does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

20.  In the present case, the Board had given adequate separate consideration to the 3^rd applicant’s case and observed that the 3^rd applicant’s sister who has stayed in Vietnam has not been harmed by the creditor of the 1^st and 2^nd applicants. The Board assessed that it would be safe for the 3^rd applicant to return to Vietnam. The applicants have not put forward any evidence to show that the Board was wrong in its findings.

21.  For the above reasons, there is no reasonable prospect of success in the 3^rd applicant’s intended judicial review and her appeal should also be dismissed.

22.  We dismiss the appeal brought by the 1^st, 2^nd and 3^rd applicants[6].