BUI THI VAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 549/2018

[2020] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 549 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  Leave be granted to the Applicants to apply for judicial review of the Torture Claims Appeal Board’s (“the Board”) decision based on the grounds that:

(a) it was procedurally unfair for the Adjudicator not to make any or proper or sufficient enquiry as to the Applicants’ failure to attend the scheduled oral hearing and/or that there was no or no sufficient evidential basis for the Adjudicator to conclude that the Applicants were not willing to come forward to stand by their case or to refuse to give any weight to the information provided by them to the Director; and

(b) the Adjudicator failed to conduct any or sufficient investigation into the information and materials before the Board as to the Applicants’ claim on the papers and in their absence, and/or failed to make proper findings on the issues of credibility, state protection and/or internal relocation,and/or to give clear or cogent or sufficient reasons for such findings in the determination of the Applicants’ claim.

It is further directed that:

2.  The Applicants shall file and serve an originating summons within 14 days of this decision, and to serve a copy with all other relevant documents on the Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.     The 1^st Applicant (“A1”) is the mother and the other two Applicants are her sons, all nationals of Vietnam who entered Hong Kong illegally on separate occasions in 2013 and 2016 and subsequently surrendered to the Immigration Department when they raised their non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the 1^st Applicant’s creditors for failing to repay her loans.  They were subsequently released on recognizance pending the determination of their claim.

2.     The 1^st Applicant was born in 1977 and raised in Hải Phòng, Vietnam.  After leaving school she worked as a farmer in her home village, married her husband who was also a farmer in 1995, and gave birth to three sons, with the younger two being the 2^nd and 3^rd Applicants (“A2” and “A3”).

3.  In October 2011 A1 somehow left Vietnam for China and later sneaked into Hong Kong but was soon arrested by police and was repatriated back to Vietnam in November 2011.  

4.  In 2012 her husband wanted to work as a fisherman by catching fish for A1 to sell in the local market, and borrowed some loans for purchasing a fishing boat, but as they were not enough, A1 helped out by borrowing further loans from five fellow villagers/money-lenders to make up the shortfall, and as a result her husband was able to purchase the fishing boat in October 2012, and started taking it out to the open sea with their eldest son and a few other fishermen working on the boat.

5.  Unfortunately, one day in about July 2013 her husband lost his boat after it sank in an accident, and with no income A1 was unable to repay her loans, and as a result her creditors started demanding for repayments with threats of violence including threatening to kill her and her family if her loans were not repaid.

6.  Fearing for her life but A1 did not report the threats to the police, and instead she left the children in the care of her husband and departed Vietnam by herself on 1 December 2013 for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, and for which she was later released on recognizance pending determination of her claim.

7.  After her departure, her creditors then turned their demands to her husband for repayment of her loans, and again he did not report the threats to the police, but to avoid their threats he left the children in the care of his family and departed Vietnam by himself in March 2014 for China, and from there he also sneaked into Hong Kong to join A1 and raised his non-refoulement claim on the same basis.

8.  In April 2016 A1 arranged for their two younger sons, A2 and A3, to be brought into Hong Kong illegally by the same route and accompanied them to surrender to the Immigration Department when she also raised a non-refoulement claim for them on the same basis, and for which they completed their Non-refoulement Claim Form as a family and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  By agreement their claims were jointly assessed together on the same basis.

9.  By a Notice of Decision dated 28 October 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the creditors upon their return to Vietnam as low due to the absence or low intensity and frequency of past ill-treatment from them, that their problems with the creditors were private monetary disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 and her husband as able-bodied adults with work experience to move with their children to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City or Hanoi where it would be difficult if not impossible for those creditors to locate them.

11.  The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which they failed to attend the oral hearing scheduled by the Board on 2 February 2018 for their appeal without any explanation, and the Board proceeded to deal with their appeal on papers and in their absence.  On 9 March 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found that the Applicants failed to provide any explanation for their absence, that as they were not willing to stand by their case or to answer questions raised of their claim before the Board, it therefore refused to place any weight to the information provided by them to the Director, and with internal relocation option available in other parts of Vietnam, it dismissed their appeal.

13.  On 3 April 2018 A1 by herself filed a Form 86 for leave to apply for judicial review of the Board’s decision, which she later amended on 21 August 2018 to also include her children A2 and A3 but somehow not her husband in her intended application, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation to which she merely attached copies of the previous decisions and documents.

14.  Notwithstanding the absence of any ground put forward by the Applicants for their intended challenge, the fact is that as they are no longer represented by DLS and that the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issues at hand, I shall next proceed to do so.

15.  In the Board’s decision, the adjudicator explained that he set down the oral hearing because there were matters that he needed the Applicants to clarify regarding their claims including those questions set out in paragraph 18 of the decision, but when the Applicants failed to appear at the scheduled hearing, the adjudicator dismissed their appeal for the following reasons in paragraph 19 of the decision:

“ A) None of the Claimants appeared at the scheduled hearing. There has been no explanation for absence. I cannot help but conclude that the Claimants are not willing to come forward to stand by their case. I refuse to give any weight to information provided by the Claimants to the Department. In such circumstances, and though the standard of proof required of the Claimants is low, the Claims are not made out.

B)  I should mention that internal relocation, on the information before me,is a viable option.  There is nothing to indicate any of the money lenders will be able to locate the Claimants in other parts of Vietnam.  Not having a house in other parts of Vietnam and not having money (see Claimant 2 explained) do not amount to undue hardship to negate this option.”

16.  While an adjudicator is certainly entitled to take into account an applicant’s failure to attend the hearing before the Board in order to confirm, elaborate, clarify and/or answer questions raised of his or her claim as an important or significant factor in assessing credibility or as to how much weight to be placed in the materials provided by the applicant in the determination of the claim, it does not however appear to me that the adjudicator in the present case had made any enquiry as to why the Applicants failed to attend the scheduled hearing, as there could be many valid or legitimate reasons for their absence, such as the notice of hearing did not reach them, or that they had an accident on their way, or that they were stuck somewhere in the traffic, just to name a few possibilities which immediately came to mind.

17.  In the absence of any such enquiry, it does not seem to me to be a conclusion that can be properly drawn from the mere failure of the Applicants to attend the hearing, as unless there are additional factors that point clearly to such a conclusion, a failure to attend on the first occasion does not necessarily mean that an applicant is not willing to pursue his case.  The position may be different if he has failed to attend for hearings more than once or where he fails to comply with an unless order, which is not the case here.  As such it seems to me reasonably arguable that there was no or no sufficient evidential basis for the adjudicator to conclude that the Applicants were unwilling to come forward to stand by their case.

18.  More importantly, with or without an oral hearing, an adjudicator in dealing with an applicant’s appeal/petition is required to properly review the claim based on all the available information and materials before the Board, and to make determination of facts with clear and cogent reasons, as mandated in the Guidelines for Handling Claims Made under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is relevant to the work of the Assessors, and the Brief Notes for adjudicators (Torture Petitions) on Handling Petition Lodged by Unsuccessful Torture Claimants Under Article 48(13) of the Basic Law, which provide that high standards of fairness are required of the Assessors and adjudicators in their investigation and determination of the claim, and explain how the adjudicator may determine an appeal/petition without an oral hearing as follows:

“ The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with whether the adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the adjudicator will take into account the circumstances of the case,including but not limited to consideration that all relevant evidence has been presented and the determination of the facts shall be based on clear and cogent reasons.”

19.  Furthermore, a determination of an appeal/petition under Article 48(13) of the Basic Law involves a rehearing of the matter determined by the Director and not an appeal from the Director’s decision, as held by McWalters J (as he then was) in AM v Director of Immigration[2014] 1 HKC 416, in which his Lordship elaborated how it should take place in paragraph 30 of his judgment:

“ 30. A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of a witness and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called. If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim. This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.”

20.  In conducting such a determination by way of a rehearing, the Court of Final Appeal also held in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 that in discharging his obligation of procedural fairness, the adjudicator has to display a high standard of fairness which does not involves adopting “an attitude of sitting back and putting the person concerned to strict proof of his claim”: [54], and in TK v Jenkins & anor [2013] 1 HKC 526, the Court of Appeal stated at paragraph 25:

“ The exercise of determining whether a claim made under art 3(1) of the CAT is valid must be one of ‘joint endeavour’.”

21.  It is therefore clear that the adjudicator should, as and when the circumstances so require, take the initiative in enquiring into an applicant’s claim, as McWalters J said in AM at paragraph 16:

“ They do not sit back and passively preside over an adversarial process. Rather they are more akin to inquisitors and consequently a degree of pro-activity is expected and will be required of them.”

22.  In TK, supra, Cheung CJHC (as he then was) also stated at paragraph 22:

“ High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.”

23.  It is therefore clear of what the courts have said above that an applicant having presented his claim on his basis, both factual and legal, as supported by his evidence and materials in his claim, to the Director for determination in the first tier under the enhanced screening process, when that was unsuccessful, and in the exercise of his right to petition to the Board in the second tier of the screening process, when he is often no longer represented, the adjudicator is required to make enquiry and conduct investigations into his claim by way of a rehearing with a degree of pro-activity, and to give clear and cogent reasons for his findings and determination.

24.  In the present case, as noted above, the adjudicator did not appear to have proceeded to consider those information and materials before the Board in the absence of the Applicants,or to make any or proper finding as to their credibility, or state protections and/or internal relocation without providing any reasons as to why it would not amount to undue hardship for them to relocate to Vietnam whilst without a house or money.

25.  In the premises, it seems to me reasonably arguable that:

(1) it was procedurally unfair for the adjudicator not to make any or proper or sufficient enquiry as to the Applicants’ failure to attend the scheduled oral hearing and/or that there was no or no sufficient evidential basis for the adjudicator to conclude that the Applicants were not willing to come forward to stand by their case or to refuse to give any weight to the information provided by them to the Director; and

(2) the adjudicator failed to conduct any or sufficient investigation into the information and materials before the Board as to the Applicants’ claim on the papers and in their absence, and/or failed to make proper findings on the issues of credibility, state protection and/or internal relocation, and/or to give clear or cogent or sufficient reasons for such findings in the determination of the Applicants’ claim. 

26.  For these reasons, I am of the view that the intended application for judicial review of the Board’s decision based on the above grounds has met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.  Accordingly I grant leave to the Applicants to apply for judicial review of the Board’s decision based on the grounds stated above, and direct that they shall file and serve an originating summons within 14 days of their receipt of this decision, and to serve a copy with all other relevant documents on the Board as respondent and the Director as interested party.

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