RE NGUYEN THI LE HUONG AND ANOTHER

CACV 199/2022

[2022] HKCA 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2022

(ON APPEAL FROM HCAL NO 1561 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an appeal against the order of Deputy High Court Judge K W Lung (“Judge”)  dated 23 July 2020 refusing to grant leave to the 1^st and 2^nd Applicants to apply for judicial review.[1] The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  dated 25 June 2018. By that decision the Board dismissed the Applicants’ appeal against the decisions of the Director of Immigration (“Director”)  dated 2 September 2016, 30 March 2017 and 5 February 2018 to reject their claim for non-refoulement protection in Hong Kong.

Background

2.  The 1^st Applicant is a national of Vietnam born in 1980.  She travelled from Vietnam to Mainland China and from Shenzhen entered Hong Kong illegally on 12 October 2014.  She surrendered herself to the Hong Kong police on 15 October 2014.  She said that her husband had also come to Hong Kong seeking non-refoulement protection.  She and her husband have two sons who were born in Vietnam, and a third son, namely, the 2^nd Applicant, who was born in Hong Kong on 11 November 2015.  The 1^st Applicant made a claim by written representation for non-refoulement protection for herself and for the 2^nd Applicant on 15 October 2014 and 4 February 2016 respectively.  They were legally represented in the course of the vetting process of the Immigration Department at least up to the first decision of the Director dated 2 September 2016.

3.  The basis of their claims was that the 1^st Applicant and her husband had on 14 May 2014, while going out for entertainment, encountered an anti-China demonstration in Haiphong city, and decided, out of curiosity, to take part in it.  When public security officers came to disperse the crowd, the 1^st Applicant struggled with them and tore a national flag in front of them.  The public security officers had been looking for her and her husband.  They decided to leave Vietnam separately.  Details of the Applicants’ claim were summarised at §§2-9 of the Board’s decision.

4.  By a Notice of Decision dated 2 September 2016, the Director dismissed the Applicants’ non-refoulement claim with reference to risk of torture[2], BOR 3 risk[3], and persecution risk[4]. Subsequently they were invited to, but did not, submit additional facts in respect of BOR 2 risk[5].  By two Notices of Further Decision dated 30 March 2017 and 5 February 2018 respectively, the Director rejected the 1^st and 2^nd Applicant’s claims in relation to BOR 2 risk.

5.  The Applicants appealed the Director’s decisions to the Board.  The Board held a hearing on 10 May 2018 at which the 1^st Applicant gave evidence and answered the Board’s questions.  In the end the Board found the 1^st Applicant’s account untruthful.  The Board did not accept that she had participated in a political demonstration or torn a national flag in May 2014 or that she was a wanted person and would be prosecuted and sentenced to lengthy imprisonment or death in Vietnam.  Accordingly, the Board concluded that the 1^st Applicant failed to establish her claim in relation to all applicable grounds, and that as the 2^nd Applicant’s claim depended on the 1^st Applicant’s account, his appeal also failed.  On 25 June 2018, the Board issued its decision dismissing the Applicants’ appeals.

The Judge’s decisions

6.  On 7 August 2018, the Applicants filed their Form 86 to apply for leave to apply for judicial review of the Board’s decision. No ground for judicial review was set out in the Form 86.  In the accompanying affirmation of the 1^st Applicant, she simply reiterated the factual allegations on which she based her claim, and stated that the Board did not understand that taking part in public protests was illegal in Vietnam.

7.  Their application was scheduled for hearing before the Judge on 18 July 2019 but they failed to attend.  On 23 July 2020, the Judge decided, on the basis of the available documents, to refuse leave to apply for judicial review because the facts were for the Director and Board to find and the Applicants had not shown any reasonably arguable ground for judicial review.

8.  The Applicants took out a summons on 18 August 2020 to seek an extension of time to appeal against the decision of the Judge. In his written decision dated 15 July 2021, the Judge dismissed the application.[6] 

9.  On 27 July 2021 the Applicants took out a summons in this court for a renewed application for extension of time to appeal (CAMP 285/2021).  In a written decision handed down on 4 May 2022, G Lam JA granted an extension of time since the court below had apparently sent the wrong documents to the Applicants and the Applicants were actually in time (disregarding the time in August 2020)  when they filed their summons for extension in the court below – reasons not connected with the merits of the intended judicial review.[7]

10.  On 16 May 2022, the Applicants filed a Notice of Appeal in which the 1^st Applicant essentially repeated what she had stated in her affirmation made on 7 August 2018 in support of the application for leave to apply for judicial review.

11.  Despite the directions given by the Registrar of Civil Appeals, no step had been taken on behalf of the 2^nd Applicant, a minor, for the purpose of complying with Order 80 rule 2 of the Rules of the High Court.  The 1^st Applicant has on behalf of herself and the 2^nd Applicant consented for the appeal to be determined on paper.  They have however not lodged any written submissions in accordance with the further directions of the Registrar of Civil Appeals. In these circumstances we consider it appropriate to proceed to determine the appeals on the basis of the available documents.

Discussion

1^st Applicant

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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(6)).

13.  The Board’s reasons for rejecting the 1^st Applicant’s claim have been described above.  In particular the Board did not regard the 1^st Applicant’s evidence as truthful or reliable.  It found that she did not take any active part in the demonstration or tear up the national flag.  These findings were matters within the province of the Board based on the evidence that it received.  The court cannot intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  We do not see any such error of law, procedural unfairness or irrationality in the Board’s decision in the present case.  Nor has the 1^st Applicant pointed to any.

14.  The 1^st Applicant has also failed to point to or substantiate any alleged error of the Judge in his decision, or to raise any viable ground of appeal.  It follows that her appeal must be dismissed.

2^nd Applicant

15.  The 2^nd Applicant is a minor.  The court’s approach in considering a minor’s claim is 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.”

16.  In the present case, nothing had been put forward in support of the 2^nd Applicant’s claim other than the allegations relating to the 1^st Applicant’s claim.  Indeed, it is difficult to see how the 2^nd Applicant would be implicated or harmed even if the 1^st Applicant’s case was accepted.  There is nothing to suggest that the 2^nd Applicant would in any way be held responsible in Vietnam for his parents’ acts at a demonstration which took place before he was born.  The Board, after considering the evidence of the 1^st Applicant, rejected it as being untruthful.  In these circumstances, there is no factual basis whatsoever to support the 2^nd Applicant’s claim.

17.  The Board had examined the position of the 2^nd Applicant’s position and concluded that it was entirely dependent on the 1^st Applicant’s case.  Further, there is in our view no material that may give rise to a concern that there may be non-refoulement grounds that relate specifically to the 2^nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 2^nd Applicant before the Board.

18.  Accordingly, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.  His appeal must also be dismissed.

Conclusion

19.  The Applicants’ appeals have no merits, and are accordingly dismissed.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.