NGUYEN QUANG HIEN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1289/2018 and

HCAL 1660/2018

(consolidated)

[2021] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 1289 OF 2018 AND 1660 OF 2018

(CONSOLIDATED)

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.  This matter consolidates with HCAL 1660 of 2018 so that they are to be dealt with together as one matter and the husband applicant shall be named as the 1^st applicant, the wife, 2^nd applicant and the daughter, 3^rd applicant;

2.  The application for extension of time to appeal to the Court of Appeal in HCAL 1660 of 2018 shall be stayed, with liberty to apply;

3.  Form Call-1 dated 27 December 2019 shall apply to this consolidated matter;

4.  Form Call-1 dated 27 December 2019 shall be delivered to the husband, the 1^st applicant in this matter;

5.  All applicants in this consolidated matter be at liberty to appeal to the Court of Appeal the decisions in Form Call-1 dated 27 December 2019 and this Form Call-1 within 14 days from the date of this Order (O.53, r. 3(4));

6.  Liberty to apply; and

7.  Applicants’ application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

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 applicant

4.  The applicant is a Vietnamese national. He came to Hong Kong on 5 July 2015 where he was denied permission to land whereupon he lodged his non-refoulement claim with the Immigration Department.

5.  This applicant is in fact the husband of the other two applicants in HCAL 1660 of 2018, who are his wife and daughter (“the wife and daughter”). The Board has described the daughter as a “disabled daughter” in paragraph 1 of the Board’s Decision. The wife and daughter filed Form 86 in their application for leave to apply for judicial review of the Board’s Decision. For reasons unknown, the husband did not join them as party. However, in the Board’s Decision, the Board recorded that the husband had attended the hearing before it and the Board had also tested his evidence as compared to his wife’s evidence.

6.  The case of the wife and daughter depends on the facts of the husband. The Board’s Decision therefore covers the facts and findings of the whole family, including the husband, who is the applicant in this application.

This application be consolidated with HCAL 1660 of 2018

7.  This Court has dealt with HCAL 1660 of 2018. The wife and daughter did not appear in the hearing and the Court has determined their application on the paper. By Form Call-1 dated 27 December 2019, the Court dismissed their application for leave to apply for judicial review of the Board’s Decision. The wife and daughter have, by summons dated 4 January 2021, applied to the Court for an extension of time to appeal its decision to the Court of Appeal. This application is still pending.

8.  The question is whether this application should consolidate with HCAL 1660 of 2018.

9.  Under Order 1A, rule 1 of the Rules of the High Court (“RHC”), the underlying objectives of the rules are to increase the costs-effectiveness and to ensure that a case is dealt with as expeditiously and to ensure fairness for the parties. Rule 4 provides that the Court should further the underlying objectives of the rules by actively managing cases.

10.  Order 1B, rule 1 of the RHC provides that the Court may by order consolidate proceedings [2(f)]. Order 1B, rule 2 of the RHC provides that the Court may exercise its powers of its own motion.

11.  Order 53, rule 12 of the RHC:

Consolidation of applications (O. 53, r. 12)

Where there is more than one application pending under section 21K of the Ordinance against several persons in respect of the same office, and on the same grounds, the Court may order the applications to be consolidated.

12.  The Board had made the Decision on the common facts of the family. The wife and daughter have indicated that they would appeal against this Court’s decision. If the husband’s application is to be dealt with separately, there is a high probability that the husband may also appeal to the Court of Appeal against this Court’s decision. This Court will invariably adopt its decision in relation to the wife and daughter, upholding the Board’s Decision. The final consequences will be that there will be separate applications to this Court for appeal out of time and further, separate appeals to the Court of Appeal. This will cause duplication of costs and time.

13.  In the circumstances, in order to save time and costs for the applicants and the Court, this matter should consolidate with HCAL 1660 of 2018. I so order.

Directions

14.  The following directions shall apply to the consolidated matter:

(1)  this matter consolidates with HCAL 1660 of 2018 so that they are to be dealt with together as one matter and the husband applicant shall be named as the 1^st applicant, the wife, 2^nd applicant and the daughter, 3^rd applicant;

(2)  the application for extension of time to appeal to the Court of Appeal in HCAL 1660 of 2018 shall be stayed, with liberty to apply;

(3)  Form Call-1 dated 27 December 2019 shall apply to this consolidated matter;

(4)  Form Call-1 dated 27 December 2019 shall be delivered to the husband, the 1^st applicant in this matter;

(5)  all applicants in this consolidated matter be at liberty to appeal to the Court of Appeal the decisions in Form Call-1 dated 27 December 2019 and this Form Call-1 within 14 days from the date of this Order (O.53, r. 3(4);

(6)  liberty to apply.

Other issues in this consolidated matter

15.  This Court has noted that the Board has described the 3^rd applicant in this consolidated matter as a disabled daughter. See paragraph 5 above.  A disabled person’s position is analogous to a minor’s under Order 80 of the RHC.

16.  The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021, held:

“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^[1], 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. … … 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.”

17.  It is for this Court to determine whether her case should be remitted to the Board for re-consideration or dismiss her application as determined in Form Call-1 dated 27 December 2019.

18.  Having considered the factors below, I decide to dismiss her application as I did in Form Call-1 dated 27 December 2019:

(1)  the 3^rd applicant was legally represented at the stage of the investigation before the immigration officer and her legal representative should have presented her case fully to the immigration officer;

(2)  there is nothing before me to show that the 3^rd applicant’s specific case has not been presented to the Director or the Board for consideration;

(3)  the Board had considered the applicants separately and came to the conclusion that it rejected the facts relied upon by the 1^st and 2^nd applicants in support of their case. The 3^rd applicant has to rely upon her parents’ case for her own application. The Board found at paragraph 47 of the Board’s Decision:

‘… … I have no doubt whatsoever that their account of loans, a trucking business, violence at the hands of loan sharks and similar matters as simply an invention.’

(4)  the Board had also dismissed the claim that the 3^rd applicant was receiving medical treatment at the time of the hearing before the Board [50];

(5)  without the factual basis in support of the applicants’ application, the applicants do not have any reasonable chance of success in their application.

CONCLUSION

19.  I therefore maintain my decisions in Form Call-1 dated 27 December 2019 that the applicants’ application for leave to apply for judicial review of the Board’s Decision be dismissed.

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