DO THI HANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 730/2019

[2021] HKCFI 3250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 730 of 2019

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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;

Order by Deputy High Court Judge K. W. Lung:

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

2.         The 1^st Applicant shall, on behalf of herself and the 2^nd Applicant, take out the originating summons within 14 days from the date of this Order as provided under O.53, r.5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are mother and daughter, who was born on 24 November 2015, a minor in this case.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 12 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant daughter’s case relies upon the facts of the applicant.

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

The applicants

4.  The applicants are citizens of Vietnam.  The 1^st applicant entered Hong Kong illegally on 20 September 2015.  She surrendered herself to the Immigration Department on 23 September 2015.  She gave birth to the 2^nd applicant on 24 November 2015 in Hong Kong.  On 6 April 2017, the 1^st applicant lodged a non-refoulement claim on behalf of herself and the 2^nd applicant.  She also lodged a non-refoulement claim on behalf of her son, born on 3 January 2018 out of wedlock, on 19 March 2018[1].  

5.  The 1^st applicant claimed that, if refouled, they would be harmed or killed by her creditor or her husband.  The applicant said that she and her husband had four daughters.  When she was pregnant with the 2^nd applicant, her abusive husband constantly hit her as he did not want another girl.  Since May 2015, the husband went to work in southern part of Vietnam and they ceased to contact each other.  In October 2011, the 1^st applicant claimed to have borrowed some money from Dan.  However, she was unable to repay.  On several occasions from 2014 to 2015, Dan and her followers came to threaten the 1^st applicant and demanded for repayment.  In two incidents in August and September 2015, the 1^st applicant was beaten and also received death threats from Dan.  Out of fear, she fled to Hong Kong for protection.  Details of her story can be found at paragraph 8 of the Director’s Decision as described below and paragraphs 28-36 of the Board’s Decision.  

The Director’s Decision

6.  The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap.  115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap.  383 (Risk of violation of the right to life) (“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”).

7.  By Notice of Decision dated 10 May 2018 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of the applicants being harmed or killed by Dan or the 1^st applicant’s husband if they returned to Vietnam [14]-[18]; that state protection was available to them [19]-[22]; internal relocation was an option open to them [23]-[27].

The Board’s Decision

8.  The applicants appealed to the Board against the Director’s Decision.  They lodged the notice of appeal/petition on 7 December 2018 which constituted late filings.  Pursuant to section 37ZT of the Immigration Ordinance, Cap.115, the Board considered whether it would allow the applicants’ late filings.  Bearing in mind the test laid down in IO, the principle, procedures and the practice directions of the Board, the Petition Guide, and the legal principles derived from cases [16]-[27], the Board examined the applicants’ circumstances.  It found that the applicants should be made aware of the Director’s Decision through duty lawyer service shortly after 10 May 2018 [37]-[47]; that the duty lawyer service confirmed that a DLS meeting was held on 15 May 2018 with the 1^st applicant or at least the Board could rely on common practice to infer that the applicants was informed about the Director’s Decision on the meeting [48]-[55]; that the 1^st applicant was provided with Notice to Persons Making a Non-refoulement Claim by the Immigration Department which clearly stated the time-limit [56]-[66]; that the 1^st applicant’s explanations as summarized at paragraphs 82 and 83, were insufficient to justify the long delay [84]-[102]; that, as to the substantive merits of the applicants’ claim, the Board refrained from determining the credulity of the evidence without the benefit of the rehearing.  Nonetheless, the Board considered the legal principles in ASM v Torture Claims Appeal Board (unrep. HCAL 37 of 2015, 17 August 2016) and formed a preliminary view that the claims were not so strong that it would exercise its discretion to waive the delay [103]-[109].  In particular, the Board had considered the Director’s Decision and found no patent error [106].  For the above reasons, the Board concluded that there were no special circumstances making it unjust not to allow the late filing of the notice of appeal [119].         

Application for leave to apply for judicial review

9.  The applicants filed Form 86 on 15 March 2019 for leave to apply for judicial review of the Board’s Decision.

10.  In the 1^st applicant’s affirmation in support of their joint application, she repeated her reasons for coming to Hong Kong.

DISCUSSION

11.  The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 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.”

12.  The Board had considered the Director’s Decision and found no patent error.  In the Director’s Decision, the Director had only considered the 1^st applicant’s case.  It did not consider the 2^nd applicant’s case as a minor separately, treating their applications as a composite claim.  It is, as according to the Court of Appeal of the above case, an error of law.

13.  It is therefore arguable that the 2^nd applicant has merit in her claim.  Since the 1^st applicant’s case should be considered jointly with that of the 2^nd applicant, who cannot survive independently of her mother in Vietnam, I grant leave to the 1^st applicant so that her case can be considered together with the 2^nd applicant’s case.

CONCLUSION

14.  I grant leave to the applicants to apply for judicial review of the Board’s Decision.  The 1^st applicant shall, on behalf of herself and the 2^nd applicant, take out the originating summons within 14 days from the date of this Order as provided under O.53, r.5 of the RHC.

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

[1] The biological father of the son sought to withdraw the son’s non-refoulement claim by way of a letter to the Board on 13 December 2018: [79] of the Board’s Decision.