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HCAL 218/2019
[2021] HKCFI 967
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 218 of 2019
BETWEEN
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Nguyen Thi Loan |
1st Applicant |
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Dao Huy Hoang |
2nd Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge C P Pang:
Leave for both applicants to apply for Judicial Review be refused.
Observations for the Applicants:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicants’ claim of non-refoulement protection.
2. The 1st applicant is the mother of the 2nd applicant (her third son). Both of them are nationals of Vietnam. They were born in Vietnam in 1963 and 2001 respectively. They surrendered themselves to the Immigration Department on 8 April 2016 claiming that they had entered Hong Kong by boat unlawfully. They then lodged a non-refoulement claim. The 1st applicant made the application on behalf of the 2nd applicant, who was then a minor. They were subsequently released on recognizance.
3. The facts of the case and the basis for the applicants’ non-refoulement claim are summarized at para [15-32] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicants would be harmed or even killed by the creditor, Su, of 1st applicant’s late son (eldest son) and his followers. She claimed that Su and his followers have harassed them and threatened to kill both her and the 2nd applicant. She stated that on 30 September 2007, when her sons were not at home, Su and his followers (one of them is named Pham) came to their home. They were armed with rifle and knives saying that her late eldest son had borrowed 1.2 billion VND from Su and refused to pay the debt. They attacked her and her husband. They did not go to hospital to seek medical treatment because they did not have any money. They reported to the local police station. The couple did not have the opportunity to confirm with their eldest son as he did not return home after the attack.
4. In October 2007, his eldest son was murdered by Pham who admitted to the police that he had killed him as revenge. A newspaper article was produced to show Pham being questioned by the police. Pham remained in prison but the 1st applicant did not know his sentence at the time she left her country.
5. Between October 2007 and May 2008, Su and his followers continued to harass and threaten the 1st applicant’s family. In March 2012, the couple sold their property to repay the debts. They sold it for 100,000,000 VND and paid the whole amount to Su. The couple and their youngest son (the 2nd applicant) then moved to another area to avoid Su. However, they were still found by Su’s followers who continued to threaten to kill them if they did not pay the outstanding debts. In October 2012, her husband was abducted from their home by Su and his followers. One day he returned home bleeding and told her that he had been viciously assaulted. He became very weak after the attack and died on 11 March 2015. A death certificate of her husband was produced to the Director. To avoid the creditor, the applicants then left Vietnam for Hong Kong in March 2016. Her second eldest son has remained in Vietnam, but he is in hiding. He was unable to accompany the applicants to Hong Kong because he is married. She does now know where he is currently living.
The Director’s decision
6. By a notice of decision dated 16 December 2016, the Director rejected the applicants’ non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The Director found there were inconsistencies and doubts in the applicants’ claim. Leaving aside the credibility issue, the Director found that the alleged threats arose from a personal and private dispute, and any ill treatment inflicted on the applicants did not reach the minimum level of severity required for non-refoulement protection. He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicants lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
7. A hearing was scheduled before the Board on 18 September 2018. Both applicants were represented by counsel assigned by the Duty Lawyer Scheme. The 1st applicant gave evidence at the hearing.
8. By a decision dated 8 November 2018, the Board rejected the appeal/ petition of both applicants confirming the Director’s decision. The Board’s decision covered all applicable grounds.
9. The Board gave very detailed reasons for rejecting the applicants’ claim at paragraphs [116-166] of its decision.
10. In a nutshell, the Board’s reasons can be summarized as follows:
(1) The Board noted in particular the duty lawyer’s submission that it should have regard to the “internal health and feelings” of the applicants as well as the “vulnerable age” of the 2nd applicant, who was then 17 years of age and was only six years of age when his brother was killed [59].
(2) The Board was not satisfied that the 1st applicant had provided a truthful account of her experiences in Vietnam and her reasons for leaving with her teenage son. Her evidence was also inconsistent in significant respects and lacking in credibility in others. Furthermore, the documents she produced did not support her claims and the lack of documentation which it considered it would have been reasonable to obtain and provide is problematic [122].
(3) She had relied on the unfortunate death of her son and the subsequent death of her husband to manufacture claims for non-refoulement protection [123].
(4) Her husband died in March 2015 and she and her son only left Vietnam in March 2016, the evidence did not establish that they were fleeing because they were fearful of harm from loan sharks [141].
(5) The Board did not accept that her eldest son borrowed money from a loan shark; that he was shot and killed by loan sharks; that she or her husband were ever threatened, harmed or pursued by loan sharks; or that her husband and son died as a result of any connection with or harm from loan sharks [144].
(6) The Board, having considered the concept of “joint endeavor”, found there was no obligation or failing by the Director or the Board in relation to contacting the Vietnamese police or other agencies to obtain information for the applicants [145].
(7) In conclusion, the Board was not satisfied that the applicants genuinely fear harm from loan sharks upon their return to Vietnam [146].
11. Accordingly, the Board dismissed both applicants’ appeal on all applicable grounds.
Application for leave to apply for judicial review
12. The applicants filed a Form 86 on 23 January 2019 for leave to apply for judicial review of the decision of the Board. By that time, the 2nd applicant had reached the age of 18 and he is not a minor.
13. By a letter dated 22 July 2020 sent to the applicants’ address for service, the court invited the applicants to submit information including any submissions that they would like to make. The letter was returned to the court through postal service marked “no such person”. The Immigration Department confirmed by letter dated 18 March 2021 that the latest address of the applicants that they had was the same address. As the address would not be effective for service, there is no point to send another letter to the same address inviting them to make submission. The fact is that there has been no request for oral hearing. The application is therefore considered on the papers.
14. In the Form 86 and supporting affirmation, the applicants did not set out any proper grounds for the relief sought. The 1st applicant only repeated her claimed fear of harm by her eldest son’s creditor.
Discussion
15. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.
16. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
17. In the present case, the Board in fact rejected the 1st applicant’s appeal/ petition on the ground that it disbelieved the 1st applicant and found her evidence inconsistent in significant respects and lacking in credibility in others. The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence. Having carefully evaluated all the evidence, it found that she had relied on the unfortunate death of her son and the subsequent death of her husband to manufacture claims for non-refoulement protection On the factual findings, there would be no factual basis in support of any of the applicable grounds.
18. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
19. The Form 86 and supporting affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense. Regurgitation of the alleged fear cannot constitute a valid ground for review.
20. The Board, with the benefits of hearing the 1st applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the 1st applicant’s credibility with detailed reasons set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board in relation to the 1st applicant.
21. The 2nd applicant was a minor (aged 17) when his appeal was considered by the Board.
22. The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971 and the Court’s subsequent cases. I will not repeat everything that has been said in the case. Suffice it to note firstly that non‑refoulement claims by children, 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 children. 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.
23. Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.
24. Both applicants were represented by a duty lawyer at the hearing before the Board. The Board specifically referred to the submission made by the duty lawyer in [58-60] including the specific case of the 2nd applicant with emphasis on his “vulnerable age” and that he was only 6 years old when his brother was killed. In considering whether it is safe and reasonable for the applicants to relocate to other parts of Vietnam, the Board also took into account the fact that the 2nd applicant had completed his public school education [66].
25. I am satisfied that the 2nd applicant had a fair chance to present his case to the Board and that his personal circumstances have been separately and properly considered by the Board. When the evidence in support of the primary facts for the perceived fear had been properly evaluated and rejected, there would be no factual basis in support of any fear of the 2nd applicant. There would be no real risk of harm for both applicants, if refouled to Vietnam. On the evidence, it is plainly open to the Board to reject the appeal of the 2nd applicant. The Form 86 and supporting affirmation contained no valid ground of review. There is no reasonable ground to challenge the Board’s decision relating to the 2nd applicant.
26. Indeed, there cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board in relation to both applicants.
27. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.
28. For the reasons given, there is no prospect of success in both applicants’ intended application for judicial review.
Disposition
29. Accordingly, I refuse to grant leave to both applicants to apply for judicial review.
Dated 15 April 2021
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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
Notes for the Applicants:
If leave has been granted, the Applicants or the Applicants’ solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicants proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicants on 15 April 2021
Nguyen Thi Loan
Dao Huy Hoang
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims
Petition Office
Putative Respondent’s ref. no.:
USM 5703/16/12/350/V803 and
USM 5704/16/12/351/V804
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1291/16 (Formerly RBCZ 11365/16) and
QA T/C 1292/16 (Formerly RBCZ 11366/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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