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

CACV 270/2020

[2021] HKCA 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2020

(ON APPEAL FROM HCAL NO 1764 OF 2018)

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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 7 July 2020, Deputy High Court Judge K W Lung refused to grant leave to the applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims[1]. The applicants lodged a Notice of Appeal against the said decision of the judge on 16 July 2020.

2.  The 1^st and 2^nd applicants consented to the disposal on paper of this appeal by the Court of Appeal.  As the Notice of Appeal was filed before the commencement date of the amendments to section 34B(4B) of the High Court Ordinance, Cap 4, this appeal is dealt with by three judges.

3.  The applicants are Vietnamese nationals.  The 1^st applicant is the wife of the 2^nd applicant, the 3^rd and 4^th applicants are their sons and are minors.  They came to Hong Kong as visitors on 29 April 2015 and subsequently overstayed.  The mother and the sons were arrested by the police on 18 May 2015.  They raised their non‑refoulement claims on 21 May 2015.  The husband surrendered to the Immigration Department on 15 June 2015 and raised a non-refoulement claim on 9 November 2015.  Their claims were made on the basis that they will be harmed or killed by their creditors if the family returns to Vietnam because they are unable to repay the debts. 

The decision of the Director

4.  By a Notice of Decision dated 21 February 2018, the Director of Immigration (“the Director”) rejected their non-refoulement claims on all applicable grounds including torture risk, BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  Based on the intensity and frequency of alleged ill-treatments from the creditors, the Director assessed that the risk of harm upon the applicants’ return is very low.  The creditors only made verbal threats without any violent act apart from the two alleged traffic incidents.  The Director considered that the past ill-treatments from the creditors have not attained the requisite minimum level of severity and the previous acts of the creditors indicated that they did not have real intention to kill the applicants.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.  In addition, the Director found that the applicants’ problem is private in nature.  It does not involve any risk of persecution and there is no indication that the applicants have been targeted by the state. 

The decision of the Board

6.  The applicants appealed against the Director’s decision to the Board. They attended the hearing before the Board on 22 June 2018.  The Board did not accept that the applicants were or are subjected to any risk of harm in their home country as there are significant inconsistencies and implausibility in their evidence.  The Board assessed that the applicants’ sufferings have not attained the requisite minimum level of severity even when the injuries of the 2^nd and 3^rd applicants as well as the high blood pressure and fear of the 1^st applicant were taken into account.  The alleged harm and the threat to harm came from non-state actor and the applicants have not claimed that a consistent pattern of gross, flagrant or mass violations of human rights exists in Vietnam.  The Board further held that state protection would be available to the applicants if they return to Vietnam and there are places in Vietnam where they can safely reside without undue hardship.  Thus, the Board rejected the appeal on 21 August 2018.

The intended judicial review

7.  The applicants filed a Form 86 and an affirmation on 28 August 2018 to seek leave to apply for judicial review against the Board’s decision.  They only reiterated the risk of harm they will face upon return to Vietnam in the supporting affirmation without stating any specific grounds for their intended challenge.

The judge’s decision

8.  The applicants attended the hearing before DHCJ Lung on 27 November 2019.  The judge considered that the applicants failed to show they have any reasonable prospect of success in the intended judicial review and dismissed the leave application on 7 July 2020.

Grounds of appeal

9.  In the Notice of Appeal filed on 16 July 2020, the applicants stated that the gravity of their circumstances had not been weighed or realized by the Director and the Board in considering their non-refoulement claims and that they should be given an opportunity to plead their case properly.

10.  The 1^st and 2^nd applicants’ contentions in their written submissions may be summarized as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicants’ applications without properly assessing the credibility of the applicants.

Legal Principles

11.  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.

12.  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.

Analysis and disposition

13.  The grounds and submissions of the 1^st and 2^nd applicants are just bare assertions without particulars or evidence in support.  In particular, they have not put forward any viable ground 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.  They have also failed to adduce any evidence to refute the findings of the Director and the Board.  Thus, their appeal is devoid of merit and should be dismissed.

14.  It is necessary for this court of Appeal to consider separately the positions of the 3^rd and 4^th applicants, as they are minors and have 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.

15.  The 1^st applicant applied for legal aid on behalf of the 3^rd and 4^th applicants but the legal aid applications were rejected by the Director of Legal Aid on 30 March 2021.  Prior to the application for legal aid, and on 10 December 2020, the Registrar of Civil Appeals had directed that the minor applicants should act by a next friend and must act by a solicitor.  No steps have been taken by the applicants to comply with Order 80 rule 2 of the Rules of the High Court to appoint a next friend for the 3^rd and 4^th applicants. Notwithstanding this, their appeal may be allowed to stand as the court has a discretion under Order 2 rule 1 to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at §27.

16.  The proper approach to deal with non-refoulement claims of minors has been considered by the Court of Appeal in Fabio Arlyn Timogan (Supra) and Re Jasvir Singh [2021] HKCA 53.  The relevant principles may be stated as follows:

(1) Non-refoulement claims by minor, 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.

17.  Although the Board has duly assessed that the 3^rd applicant’s previous injuries allegedly caused in a traffic accident did not reach the minimum level of severity, it seems that there is insufficient separate consideration concerning the non-refoulement claims of the 3^rd and 4^th applicants.  In particular, the personal circumstances of the 4^th applicant had not been separately considered and there does not appear to have been sufficient separate consideration on the feasibility of internal relocation for the 3^rd and 4^th applicants as well as the impact on them as minors in the Board’s decision.  At the oral hearing before the judge, the 1^st applicant submitted that there is concern their location will be leaked as their sons have to go to other schools even if they relocate to other places[5].  However, the judge did not deal with this concern in his decision.

18.  We consider the 3^rd and 4^th applicants’ application for judicial review reasonably arguable.  In these circumstances, the non‑compliance with Order 80 rule 2 in these proceedings should be treated as a mere irregularity without rendering this appeal a nullity.  We allow the appeal of the 3^rd and 4^th applicants and set aside the judge’s order refusing leave to apply for judicial review. In lieu thereof, we grant leave to the 3^rd and 4^th applicants to apply for judicial review of the Board’s Decision and make a direction that they should be represented by the Official Solicitor as next friend for the purpose of proceeding with their application for judicial review.

19.  As indicated earlier, we dismiss the appeal of the 1^st and 2^nd applicants.