RE NGO THI BIC THUY AND ANOTHER

CACV 287/2024, [2025] HKCA 315

On appeal from [2024] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2024

(ON APPEAL FROM HCAL NO. 731 OF 2022)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 9 July 2024[1] refusing to grant them leave to apply for judicial review against two decisions of the Torture Claims Appeal Board (“the Board”)  dated 29 July 2022 and 22 May 2023 dismissing their respective appeals against the decisions of the Director of Immigration (“the Director”)  dated 22 November 2021 and 20 October 2022 which rejected their respective claims for non-refoulement protection.

2.  The applicants’ appeal was scheduled to be heard on 25 March 2025.  The applicants were directed to lodge their written skeleton argument not less than 28 days before the hearing and further warned that if they failed to do so, they shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with their appeal being determined on paper.  This was communicated to the applicants by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicants have failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicants’ claim

4.  The 1^st and 2^nd applicants are mother and son. They are both nationals of Vietnam. The 1^st applicant is now aged 35. She entered Hong Kong illegally and was arrested by the police on 22 February 2021.  On 5 March 2021, she raised a non-refoulment claim after a deportation order was issued on 3 March 2021.  She gave birth to the 2^nd applicant on 29 April 2022.  She then raised a non-refoulement claim on his behalf.

5.  The applicants’ claims are based on fear of being harmed or killed by the 1^st applicant’s creditor as she was unable to repay the loan. The details of their claims were set out at [12] to [14], and [16] to [17] respectively of the Board’s first and second decisions.

6.  In gist, the 1^st applicant was married in the Vietnam but has separated from her husband.  They have a son who is now aged 14 and lives with his father in Vietnam.  The 1^st applicant claims that in July 2017, she borrowed VND 450 million from a creditor to start her clothing business which closed down in December 2020 due to the impact of COVID-19.  She has since defaulted in the monthly interest payment and has not repaid the principal loan.  In January 2021, the creditor and his men threatened her and threw bags of faeces on the balcony of her home.  In another incident, they beat her up outside her home, causing bruises on her face and limbs.  She did not seek help from the police as she believes they are corrupted and the creditor has triad background.  Fearing for her safety, the 1^st applicant left the country and eventually came to Hong Kong.  

7.  While in Hong Kong, the 1^st applicant cohabited with a Vietnamese non-refoulement claimant and gave birth to the 2^nd applicant. She separated from the 2^nd applicant’s father in September 2022.  The 1^st applicant claims that the creditor knows about the birth of the 2^nd applicant and had threatened to kill them both if they return to Vietnam.  

The Director’s and the Board’s decisions

8.  By two decisions dated 22 November 2011 and 20 October 2022, the Director rejected the applicants’ claims on torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.   The first decision concerns the 1^st applicant while the second decision relates to the 2^nd applicant.

9.  The applicants appealed their respective Director’s decisions to the Board.  The 1^st applicant attended two oral hearings before the Board.  The first on 30 May 2022 in respect of her appeal; and the second on 17 March 2023 on behalf of the 2^nd applicant.  By two decisions dated 29 July 2022 and 22 May 2023, the Board dismissed their respective appeals.

10.  In the decision on the 1^st applicant’s appeal, the Board found that the 1^st applicant had failed to prove the core basis of her claim, namely the existence of the loan, the reasons for the loan and the various threats instigated by the creditor, as her account was incredible, unreliable and implausible[6].  In particular, the Board did not believe that the creditor would assume a huge financial risk on the 1^st applicant who had no previous experience in running the business and no asset as security for the loan.  The Board also identified material inconsistencies in her oral and documentary evidence as to how she managed to repay the monthly interest when her business was not making sufficient profit.  The Board also noted that the 1^st applicant accepted that the creditor was merely pressurising her for repayment and had no intention to kill her.  Further, the Board, while acknowledged the existence of corruption and abuse of power in the Vietnamese government based on the country of origin information (COI), observed that there have been ongoing reforms to address these problems and assessed that the 1^st applicant could resort to the protection of the authorities[7].  The Board also considered internal relocation alternatives were reasonably available to the 1^st applicant[8].  The Board concluded that the 1^st applicant failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

11.  In the decision on the 2^nd applicant’s appeal, the Board found that the 1^st applicant’s evidence of the recent threats made by the creditor in May and June 2022 and her evidence as to how the creditor came to know about the birth of the 2^nd applicant to be doubtful and unreliable.  The Board rejected the claims about threats and risk of harm to the 2^nd applicant from the 1^st applicant’s creditor[9].  

12.  Notwithstanding this, the Board being mindful of the fact that the 2^nd applicant is a minor, had considered his claim individually by reference to his personal circumstances.  The Board found that any risk of harm against the 2^nd applicant would be low for a number of reasons[10]: (1)  the applicants could relocate to other parts of Vietnam away from the alleged influence of the creditor; (2)  the 2^nd applicant has since his parents’ separation in September 2022 been living with the 1^st applicant and her mother, from which it can be inferred that he has been supported and taken care of by the 1^st applicant’s mother and this will continue when he moves to Vietnam; and (3)  there has not been any real or personal experience of harm from the creditor, the risk of harm to the 2^nd applicant is therefore just speculative.  The Board also considered that state protection is reasonably available having regard to the relevant COI which indicates that the Vietnam police has the capability to protect children against offenders and the existence of laws and NGOs[11].  The Board further assessed that it is viable for the 2^nd applicant to relocate with the 1^st applicant to Ho Chi Minh and Da Nang[12].  For these reasons, the Board was not satisfied that the 2^nd applicant has established entitlement to non-refoulement protection under any of the applicable grounds.  

The Judge’s decision

13.  By a Form 86 dated 8 August 2022, the 1^st applicant applied for leave to judicially review the Board’s decision dated 29 July 2022 which dismissed her appeal.  On 20 December 2023, upon the 1^st applicant’s application by affirmation filed on 8 June 2023, the Judge gave leave for the Form 86 to be amended to include the 2^nd applicant as an applicant and also an application by him for leave to judicially review the Board’s decision of 22 May 2023 dismissing his appeal.  

14.  The amended Form 86 and the supporting affirmation claimed that the applicants’ lives would be in danger if they were refouled to Vietnam due to the unpaid debt and threats of violence from the creditor.  It was also said that relocation to other parts of Vietnam was not feasible because the 1^st applicant would be disadvantaged in the labour market and that her health was not good.   

15.  The Judge held an oral hearing on 17 April 2024. By a Form CALL-1 dated 9 July 2024, the Judge refused both applicants’ application for leave to apply for judicial review on the ground that the intended judicial reviews have no prospect of success.  His reasons are encapsulated at [26] to [30] as follows:

“26. The role of this Court is supervisory, meaning that it ensures that the Boards complied with the public law requirements in coming to the Boards’ Decisions on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Boards. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

27. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she did not think the Boards were wrong. But she does not want to return to Vietnam because she has no money to repay her debt. I asked the 1^st applicant whether there was any child-specific issues that she wanted the Court to take into consideration. She said that the creditor may hold her son against her and the police will be unable to help her. Her husband is a Vietnamese. He has also applied for non-refoulement claim. He has also applied for judicial review of the Board’s Decision. But there is no response so far.

28. The 1^st applicant’s claim and the 2^nd applicant’s claim were separately assessed. It is apparent that the 2^nd applicant was not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

29. It is clear that the Board had considered the 2^nd applicant’s case in detail. It came to the conclusion that the 2^nd applicant’s claim cannot sustain. I have also made enquiry with the 1^st applicant on the 2^nd applicant’s issues. Those issues raised by the 1^st applicant are not valid to challenge the Board’s Decision in respect of the 2^nd applicant.

30.  The applicants are unable to raise any valid reason to challenge the respective Board’s Decision. Therefore, they fail to show that their intended application for leave for judicial review of the Boards’ Decisions has any realistic prospect of success.”

This appeal

16.  On 16 July 2024, the 1^st applicant filed a Notice of Appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision.  The Notice of Appeal has not set out any specific ground for challenging the Judge’s decision.

17.  On 17 July 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd 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 her behalf, including possibly an application for legal aid, to rectify the position.  Noting that no further action was taken on behalf of the 2^nd applicant pursuant to Order 80 rule 2 of the Rules of the High Court, the Registrar of Civil Appeal directed on 30 October 2024 that the appeal be proceeded with.   

Our reasons for decision

18.  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].

19.  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.

20.  In relation to the 1^st applicant’s appeal, the Notice of Appeal has not pointed to any error in the Judge’s decision or the reasons he gave for his decision.  As noted above, the Board rejected the centrepiece of the 1^st applicant’s claim and found that she failed to prove the existence of the loan and the allegations of threats instigated by the creditors.  The Board also found that she could resort to state protection on the basis of the COI and that it would not be duly harsh or unreasonable for her to relocate to other cities in Vietnam and to make a living there given her relatively lengthy work experience.  All these are matters within the purview of the Board.  The general assertions that she could not relocate due to her health or the lack of competitiveness were not elaborated or presented with any relevant or necessary particulars to show that the Board has erred in its assessment and decision of her claim.  She has also failed to pinpoint or to identify with specificity or particulars any error in the Judge’s decision and his reasons.  In short, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision. As the 1^st applicant’s appeal has no merits, we dismiss it.

21.  In the case of the 2^nd 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.”

22.  In the present case, the 2^nd applicant was considered by the Board at a separate hearing and his claim was addressed in a separate decision. The factual basis of his claim was premised fundamentally and entirely on the 1^st applicant’s claim. It was said on his behalf that he would be harmed or killed by the 1^st applicant’s creditor and his men.  In light of the Board’s rejection of the core basis of the 1^st applicant’s claim, there is no factual basis to support the 2^nd applicant’s claim on the risk of harm.

23.  Moreover, the Board was keenly aware that the 2^nd applicant was a minor and the need to assess his claim separately by reference to his personal circumstances.  The Board’s assessment is that the risk of the 2^nd applicant being subjected to ill-treatment is low, having regard to, among other reasons, the fact that the creditor was not as influential as claimed and  the fear of harm was speculative in the absence of any real or personal experience of harm from the creditor.  The Board also found on the basis of the relevant COIs that the Vietnam police has the capability to protect children against offenders and that the existence of laws and NGOs could provide the protection and support that they may need in Vietnam.  The Board also inferred from the current situation of the 2^nd applicant that he could be supported and taken care of by his grandmother whilst the 1^st applicant is at work.  The Board thus assessed that internal relocation to cities like Ho Chi Minh or Da Nang are viable options for them. This is a conclusion that the Board was entitled to reach on the evidence before it. There is no basis for the court to intervene by way of judicial review.

24.  We have carefully considered whether the absence of legal representation for the 2^nd applicant at the stage of the proceedings before the Board meant that there were matters that might provide a basis for a claim specific to him as a child which had not been advanced or properly advanced before the Board.  We can see none; nor has the 1^st applicant suggested any other than those already canvassed before the Board.  

25.  In the circumstances, the 2^nd applicant’s intended judicial review is not reasonably arguable and the Judge did not err in refusing his application for leave to apply for judicial review.

26.  Accordingly, we treat the non-compliance with Order 80 rule 2 of the Rules of the High Court and the 2^nd applicant’s lack of legal representation as a mere irregularity without rendering her appeal a nullity: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  As the 2^nd applicant’s appeal has no merits, we dismiss it.

27.  In conclusion, the appeal of the 1^st and 2^nd applicants is dismissed.