PHAM THI LIEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1088/2019

[2024] HKCFI 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1088 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicants being absent in open court;

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 47-year-old national of Vietnam who entered Hong Kong illegally on 26 December 2015 and was arrested by police on 28 December 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts, and after she subsequently on 7 December 2017 gave birth to a son, the 2^nd Applicant (“A2”) out of a relationship with another Vietnamese man in Hong Kong, she also raised a non-refoulement claim for her son on the same basis. They were both released on recognizance pending the determination of their claims.

2.  A1 was born and raised in a village in Hai Phong City, Vietnam. After leaving school she farmed and raised life stocks to make her living, got married and raised a family with a daughter in her home village.

3.  In 2014 she expanded her life stock business by building a fish farm with the help of a loan borrowed from a local money-lender with monthly interest payments until discharge of the loan.

4.  However, in late 2014 her live stocks were wiped out by a plague and she lost her business, and when she was unable to repay her loan, her creditor started to send men to threaten her, and after being beaten by those men when she suffered cuts and bruises all over her body, A1 became fearful for her life, and so on 23 December 2015 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 29 December 2016 the Director of Immigration (“Director”) rejected A1’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of A1’s claim and assessed the level of her being harmed or killed by her creditor and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to A1 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 95 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Da Nang where it would be difficult if not impossible for her creditor to locate her.

7.  On 12 January 2017 A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 April 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in A1’s claim that it did not consider her to be a credible witness and rejected her claim of having incurred a loan or that she had been threatened by her creditor over any loan that caused her to leave her country to come to Hong Kong to seek protection, and that in any event even if her claimed risk were true that it arose from a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to A1 upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.  While released on recognizance pending the determination of her claim, A1 formed a relationship with another Vietnamese man in Hong Kong out of which she gave birth to A2 on 7 December 2017, and for whom she subsequently also raised a non-refoulement claim on the same basis as in her own claim by completing a NCF on his behalf on 8 December 2018 and attended another screening interview before an immigration officer with her lawyer from DLS.

10.  By a Notice of Decision dated 16 January 2019 the Director also rejected A2’s claim on all the said applicable grounds upon taking into account of all the relevant circumstances of his claim including his admission into Princess Margaret Hospital in late October 2018 when he was 10 months old due to brain haemorrhage which had subsequently subsided and was certified as medically fit for discharge but was recommended for placement in institution for care until 2 years of age due to his mother’s status and situation in Hong Kong, and for the same reasons as stated in its assessment and rejection of his mother’s claim that it also rejected his claim of fear of being harmed by his mother’s creditor upon his return with her to Vietnam, that even if such claimed risk in his mother’s claim were real that in the absence of any past ill-treatment to him as he has never been to Vietnam or that his mother’s creditor would have any knowledge or information of him or his existence that there is simply no evidence of any real intention of her creditor to seriously harm or kill her let alone A2, that in any event state and police protection would be available to him and his mother if resorted to, and that reliable and objective COI show that A2’s said medical condition even if still exists would be properly and adequately covered and dealt with by the current medical and social services available in Vietnam, and that reasonable internal relocation alternatives are also similarly available in the country with a large population 97 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A2 with his mother A1 as an able-bodied adult with working experience as well as adequate supporting social network and organizations to safely move together to other parts of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his mother’s creditor to locate him.

11.  On 29 January 2019 A2 through his mother A1 lodged an appeal to the Board against the Director’s decision, but for which neither of them attended the scheduled hearing on 20 September 2019 before the same Adjudicator for the Board and without any explanation for their absence that the Board proceeded to deal with the appeal on paper, and on 19 December 2019 the Board dismissed A2’s appeal and also confirmed the Director’s decision.

12.  In this decision and apart from rejecting A2’s claim of fear of being harmed or killed by his mother A1’s creditor as not credible on the basis of its adverse findings on her credibility for the reasons as stated in its earlier decision, the Board also considered A2’s condition as evidenced by his medical report and relevant information and found that having since reached the age of 2 that A2 no longer has any medical or health issue that may cause any hindrance on his safe return with his mother to Vietnam where if necessary state protection would be available to him together with supports and assistances from various governmental departments and NGOs as well as reasonable internal relocation for him to move safely with his mother to other parts of the country away from his mother’s home district without any risk of being located that his claim for non-refoulement protection also failed on all the applicable grounds.

13.  Meanwhile earlier on 24 April 2019 A1 filed her Form 86 for leave to apply for judicial review of the Board’s decision in dismissing her claim and appeal, and subsequently on 17 August 2020 she was also granted leave to amend the Form 86 to include A2 as the second applicant in the application given the fact that his claim was primarily based on her own claim and that it was rejected by the same Adjudicator for the Board, but no ground for seeking relief was given in the Form or in A1’s supporting affirmation for either of their application in which A1 just repeated their claims as before, nor did they subsequently attend the scheduled hearing of their application without any explanation. As such and in the absence of any error of law or irrationality or procedural unfairness in their respective processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenges.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicants’ case, the Board rejected their claims based primarily on A1’s claim essentially on its adverse finding as to her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 - 36 of its decision of 16 April 2019 and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or judicial unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge such finding of the Board.  

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claims if real is a localized one and that it is not unreasonable or unsafe for A1 to relocate with A2 to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  I am of course aware of the fact that A2 is still a minor at the age of 6 and was without legal representation in his appeal before the Board in 2019, and for that matter also in his present leave application for judicial review when neither he nor his mother A1 appeared at the scheduled hearing before the Court without any explanation, and that the proper approach to children’s non-refoulement claim was established by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 as follows:

(a)   Non-refoulement claims by children even if based on the same set of primary facts as their parents’ are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)   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, and that it does not necessarily follow from the dismissal of a parent’s claim that the children’s claims could be dismissed without further consideration of their personal circumstances;

(c)   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. 

18.  With these principles the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to lack of legal representation for the minor.

19.  In the present case, as noted above it is clear that the Board did by a separate decision consider A2’s claim based on A1’s case of fear of being harmed or killed by her creditor over her unpaid debts upon return to Vietnam but which was rejected by the Board on its adverse finding on her credibility, and that the Board also separately considered and rejected A2’s claim of risk at [27] of its decision upon A1’s own evidence that her creditor was not even aware of the existence of A2 let alone to have done any harm or made any threats against him at all, a conclusion of fact which the Board was entitled to make on the evidence before it.    

20.  Furthermore, the Board as also noted above did proceed to consider the medical issue or situation of A2 as raised by A1 in his medical report, and was satisfied that he has since been medical fit and that his health condition would not have any hindrance on his return to Vietnam with his mother, while relevant COI also show that apart from state protection being available to both A2 and his mother but also with supports and assistances from governmental departments and NGOs as well as reasonable internal relocation as noted above that I am satisfied that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and that its finding on A2’s case is justified and reasonable, and that there is no underlying matter that may support any other minor-specific non-refoulement grounds which had not been advanced before the Board, and hence there is no merits in A2’s intended application for judicial review notwithstanding that he has not been legally represented before the Board or the Court in the present application when the non-compliance with Order 80 rule 2 of RHC can be treated as a mere irregularity (see Jasvir Singh and Others [2021] HKCA 53 at [33]).                         

21.  In the premises, and having considered the decisions of both the Director and the Board on both Applicants with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the respective claims of both Applicants.

22.  For the reasons given I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their leave application.

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