RE LUU THI HOA AND OTHERS

CACV 311/2022, [2024] HKCA 174

On Appeal From [2022] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 311 OF 2022

(ON APPEAL FROM HCAL NO. 1293 OF 2018)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1.  This is the appeal of the 1^st, 2^nd and 3^rd applicants against the decision of Deputy High Court Judge Anthony To (‘the Judge’) given on 29 July 2022 refusing to grant them extension of time for leave to apply for judicial review and refusing their application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dismissing their appeal against the decisions of the Director of Immigration (‘the Director’) which refused their non-refoulement claims.

2.  The 2^nd applicant on behalf of herself and the other applicants has consented on 9 August 2022 for the appeal to be determined on the papers without an oral hearing.  No written submission was lodged to support their appeal.

I.  The applicants’ claim

3.  The applicants are members of one family.  The 1^st applicant is the mother of the 2^nd applicant, and the 2^nd applicant is the mother of the 3^rd applicant, who is the son of the 2^nd applicant. The non-refoulement claims of all applicants rely on the 1^st applicant. All three applicants are nationals of Vietnam.  The 1^st applicant and 2^nd applicant were born in Vietnam before coming to Hong Kong.  The 2^nd applicant was in Hong Kong around 2013 to 2014 and met a man Nguyen Tien Hung, and the two of them gave birth to the 3^rd applicant who was born in Hong Kong on 1 March 2014.

4.  The 1^st applicant alleged that she left Vietnam in September 2015 and entered Hong Kong illegally within a few days.  In late September 2015, she lodged her non-refoulement claim.  The 2^nd applicant last arrived in Hong Kong earlier in July 2012 and was allowed to remain as a visitor with such permission to remain extended to May 2013, but she overstayed.  She eventually surrendered to the authorities and was convicted of the offence of breach of condition of stay by overstaying and was given a suspended sentence and was released on recognizance.  While released, she gave birth to the 3^rd applicant on 1 March 2014.  She later gave birth to two other sons who are not featured in these proceedings.  On 27 March 2014, the 2^nd applicant lodged her non-refoulement claim.  On 20 June 2014, the 2^nd applicant lodged another non‑refoulement claim on behalf of the 3^rd applicant minor.

5.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by the 1^st applicant’s creditor Huy, due to the 1^st applicant’s failure to repay her debt.  The details of the applicants’ claims are set out at [36] to [60] of the Board’s Decision.  In brief, the 1^st applicant borrowed money in part to send the 2^nd applicant to Hong Kong and in part for her business as seafood wholesaler.  The seafood business started to fail and the 1^st applicant could not repay.  The alleged threats against the 1^st applicant include telephone threats, visit to her house, slap to her face, and pulling her hair.  The 2^nd applicant alleged that she received Facebook messages from the 1^st applicant’s creditors and she feared the 3^rd applicant would be kidnapped by the lenders as ransom.

II.   The Director’s decision

6.  The Director of Immigration (‘the Director’) decided against the applicants’ non-refoulement claims on 13 May 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the applicants’ right to life claim on 28 February 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

III.  The Board’s Decision

8.  The applicants appealed/petitioned to the Board against the Director’s decisions. An oral hearing was held on 1 November 2017 during which the 1^st and 2^nd applicants testified for themselves and on behalf of the 3^rd applicant as he was too young to be heard.  By a decision dated 22 December 2017, the Board dismissed the appeal.

9.  The Board held that it was less satisfied with the 1^st applicant’s evidence that the creditors were looking for the 1^st applicant’s son to beat up, as from the evidence he was safe in Hanoi.  There was a period where the 1^st applicant and her son went into hiding in the son‑in‑law’s home for five months without problem, indicating that in future she can escape any risk there may be by moving elsewhere in Vietnam.  The 2^nd applicant was never the target of threats and violence while in Vietnam, although she received Facebook messages but the messages seemed to be mild in tone, and at the hearing she said that the messages were that if full repayment was made the creditors would not do anything.  The messages were also asking for the 1^st applicant to repay and not the 2^nd applicant.   No one had so far threatened the 2^nd applicant about kidnapping her children.  It seems unlikely that the creditors will seek to use any serious violence against any of the applicants.  Although the 1^st applicant feels that the Vietnam police will not protect her, she had never made any report to the police.

IV.   The Judge’s decision

10.  On 5 July 2018, the applicants filed a Form 86 and no grounds for relief were set out.  In the 1^st and 2^nd applicants’ supporting affirmations (on behalf of all applicants and are the same), the 1^st applicant repeated the background of her case where she stated again that she and her husband borrowed money for their fishing business, that her husband died and she was left to handle the business herself, that restaurants did not pay up, and that she was left without the ability to repay the debts.  She stated that as a result, the creditors threatened her and she was fearful for her life and left for Hong Kong.  She disagreed with the Board that internal relocation was possible because the Board was not clear with her experience in how she was beaten up.  On 5 November 2020, the applicants filed a further affirmation seeking to amend their Form 86 in order to add two minor children as parties to the action. On 10 November 2020, Deputy High Court Judge P Li refused the applicants’ request.  Deputy High Court Judge Anthony To (‘Judge)’ did not hold an oral hearing as it was not requested by the applicants.  The Court had by letter dated 31 December 2021 informed the 2^nd applicant to seek legal representation in view of the fact that the 3^rd applicant was a minor.  However, the 2^nd applicant did not respond to the request.  By a Form CALL‑1 dated 29 July 2022, the Judge refused to grant leave to apply for judicial review.  The Judge held that the applicants’ Form 86 and affirmations did not contain grounds for relief, but in the affirmations they simply repeated background information, without focusing on where the Board’s decision went wrong.  The Judge held that the applicants’ complaints were factual complaints that were within the province of the Board.  The Judge also stated that the 3^rd applicant did not have his own grounds for seeking non‑refoulement, as it was based entirely on the cases of the 1^st and 2^nd applicants.  The Judge held that the Board based on evidence ruled correctly that if the applicants were to be refouled back to Vietnam their chances of having any real risk of harm were low. 

V.   This appeal

11.  On 9 August 2022, the 2^nd applicant (on behalf of all applicants) filed a notice of appeal and supporting affirmation to appeal the Judge’s decision.  The notice of appeal complained that the Director and the Board failed to weigh or realize the gravity of the circumstance.  It complained that internal relocation is not possible.  It complained that the creditors have nationwide network and can locate the applicants.  It complained about gangsters in Vietnam are cruel and can kill.  Other than these, it did not set out any ground for challenging the Judge’s decision, nor point out with sufficient particularity where the Judge was wrong in his decision.  In the supporting affirmation, it was simply stated that a good ground of appeal needed not be considered at leave stage but provided no particulars after.

12.  On 10 August 2022, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 3^rd applicant is a minor and was required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on his behalf, including possibly an application for legal aid, to rectify the position.  After a lapse of over two months, noting that no steps had been taken by the applicants, the Registrar of Civil Appeal directed on 18 November 2022 that the appeal be proceeded with.  It was further directed that the applicants should lodge written submissions by 2 December 2022.  The applicants did not comply, and pursuant to the Registrar’s directions, this appeal is dealt with based on the applicants’ available documents.

VI.   Our view

13.  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 applicant.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

15.  In relation to the applicants’ appeal, neither the notice of appeal nor the supporting affirmation has pointed to any error in the Judge’s decision or the reasons he gave for his decision.  Moreover, as noted above, the Board rejected the entirety of the 1^st and 2^nd applicants’ claim based on the implausibility of their evidence as evaluated against the available COI.  We do not accept that the matters stated in the notice of appeal and the affirmation has shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons.  In our view, the 1^st and 2^nd applicants have failed to raise any viable ground of appeal against the Judge’s decision.  As the 1^st and 2^nd applicants’ appeal has no merits, we dismiss it.

16.  In the case of the 3^rd applicant, he is a minor.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)   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 circumstance of each claimant;

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

See: Fabio Arlyn Timogan, [34] ‑ [35].

31.   Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47] - [54].

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, 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.   Third, on the other hand, 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.  In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim.  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd 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 3^rd applicant.  In the circumstances, although the Board did not appear to have separately considered the 3^rd 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.  

19.  We treat the non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 3^rd applicant’s appeal a nullity.  As the 3^rd applicant’s appeal has no merits, we dismiss it.