MAC THI HIEU AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1863/2019

[2025] HKCFI 3416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1863 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 oral submissions by the 1st Applicant in open court;

Leave for the 1^st, 2^nd and 3^rd Applicants (“the Applicants”)

to apply for judicial review be refused.

Observations for the Applicants:

1.  The Applicants are a mother and her 2 minor children of Vietnamese nationality who arrived in Hong Kong as visitors on separate occasions in 2012 and 2013 and who subsequently overstayed and then raised their non-refoulement claims for protection to the Immigration Department on the basis that if they returned to Vietnam they would be harmed or killed by the mother’s creditors over her unpaid debts. They were subsequently released on recognizance pending the determination of their claims.

2.  The mother, the 1^st Applicant (“A1”) now aged 40 was born and raised in Hai Phong City, Vietnam. After leaving university with a Bachelor degree, she married her husband and raised a family with 2 children, a son, the 2^nd Applicant (“A2”) now aged 16, and a daughter, the 3^rd Applicant (“A3”) now aged 13, in her home district.

3.  A1’s husband who was also born and raised in Hai Phong was a Coast Guard Officer, but in 2012 he was involved in a fight with a fellow officer, and was subsequently subjected to disciplinary action by his superiors but not the fellow officer involved in the fight as he was from a family with political connections, and which led to A1’s husband losing his temper during his disciplinary hearing when he made angry remarks which he later feared would be considered as an insult to the authorities for which he would be court-martialed, and so afterwards he fled from his home district to hide in a friend’s place in Hanoi.

4.  At about the same time A1 was having debts problem with her creditors who were local money-lenders from the triad society and had made threats against her over her outstanding debts that she subsequently also fled from her home district to join her husband in Hanoi, during which they decided to make arrangements to leave the country after her husband heard that the Vietnamese authorities were looking for him to arrest him for court martial.

5.  On 10 August 2012 A1 departed Vietnam for Hong Kong and subsequently overstayed, and was arrested by police on 24 August 2012 for which she was later convicted and for possession of a forged identity card, and was sentenced to prison for 12 months, during which she raised a torture claim to the Immigration Department on the basis of her fear of being harmed or killed by her creditors over her unpaid debts if refouled to Vietnam, and after it was rejected, she then appealed to the Torture Claims Appeal Board (“Board”) but that her appeal was also dismissed by the Board.

6.  On 16 August 2012 her husband also departed Vietnam for Hong Kong and subsequently overstayed, and on 15 October 2012 he surrendered to the Immigration Department and raised a torture claim on the basis of his fear of being prosecuted and/or persecuted by the Vietnamese authorities over his remarks made in his disciplinary hearing, and after his torture claim was rejected, he appealed to the Board but which was also dismissed by the Board.

7.  Meanwhile A1 arranged for their 2 children, A2 and A3 to depart Vietnam on 13 October 2013 to come to Hong Kong when they also overstayed, and on 21 October 2013 A1 accompanied them to surrender to the Immigration Department and raised a torture claim for each of them on the same basis as her own claim but later treated as non‑refoulement claims for protection under all the applicable grounds upon the commencement of the Unified Screening Mechanism (“USM”) in March 2014, while A1 and her husband were also allowed to raise their respective non-refoulement claim on the remaining applicable grounds other than torture risk, for which they each completed a Supplementary Claim Form (“SCF”) on 24 October 2014, while A1 also completed a Non-refoulement Claim Form (“NCF”) for their 2 children, and that the family then jointly attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 8 July 2015 the Director of Immigration (“Director”) rejected the claims of all the Applicants as well as A1’s husband on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”) (as noted above only for A2 and A3), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights, Cap. 383 (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and A1’s husband and assessed the level of risk of harm from their respective claims upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from the Vietnamese authorities or A1’s creditors, that there is no evidence of any intention of the Vietnamese authorities to prosecute or persecute A1’s husband or that he would not be entitled to due process with the right to defend himself with legal representation against any charges which might be brought against him in court-martial, nor is there reliable evidence of any real intention of A1’s creditors to seriously harm or kill her or her children other than to press her to repay her debts, that in any event these were private monetary disputes between A1 and her creditors only without any official involvement that state or police protection would be available to her and her children 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 93 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 and A3 to other areas of the country away from their home district in large cities where it would be difficult if not impossible for anyone to locate them.

10.  On 22 July 2015 the Applicants and A1’s husband lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but A1’s husband subsequently withdrew his appeal and was repatriated to Vietnam, whereupon only A1, A2 and A3 remained in Hong Kong to continue with their appeal, and for which they attended an oral hearing on 25 April 2016 before the Board during which A1 gave evidence for herself and her children and also answered questions raised of their claims by the Adjudicator for the Board. On 16 November 2016 their appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board accepted the Applicants’ claims of fear of harm from A1’s creditors that caused them to leave their country to come to Hong Kong to seek protection but found no reliable evidence of any real intention of her creditors to seriously harm or kill them other than to press A1 to repay her debts, and that in any event these were private monetary disputes between A1 and her creditors only without any official involvement that state or police protection would be available to the Applicants upon their return to Vietnam as well as reasonable internal relocation alternatives for A1 to move safely with her children to other parts of the country away from their home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

12.  Meanwhile the Director on 12 December 2016 in writing invited the Applicants to submit additional facts which they may consider relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any reply or response from them, the Director by a Notice of Further Decision dated 9 January 2017 also rejected the Applicants’ BOR 2 Claims upon finding that they had failed to establish a personal and real risk of their absolute and non‑derogable rights under the HKBOR including right to life under BOR 2 being violated upon their return to Vietnam.

13.  On 10 May 2018 the Applicants again lodged their appeals to the Board against this Further Decision of the Director, but as their notices of appeal were filed outside the 14-day period required after notice of the decision was given to them as provided by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of their notices of appeal, and by a Decision[2] dated 4 January 2019 the Board refused to allow the late filing of the Applicants’ notices of appeal.

14.  In its decision, the Board applied the law then was as set out in Section 37ZT (2) & (3) of the Ordinance, and found that the Director’s Further Decision was sent to the Applicants on 1 February 2017 after having re-confirmed their then address and without being returned through undelivered post, that the Applicants’ explanation of not receiving the decision in the mail was not credible or acceptable, that there was no merit in their appeal given the findings by the Board in its earlier decision, nor was there any evidence of any risk of their right to life under BOR 2 risk being violated upon their return to Vietnam, and that there were no special circumstances that would make it unjust not to allow the late filing of their notices of appeal.

15.  On 4 July 2019 the Applicants filed their Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just repeated their claims as before that they would be harmed or killed by her creditors if refouled to Vietnam but without putting forth any proper ground for their intended challenge.

16.  By then the Applicants were also out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

17.  As the last day of the three-month period for them to file their Form 86 fell on 4 April 2019, the Applicants were therefore some 3 months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

18.  In the Applicants’ case, a delay of 3 months must be considered as substantial and inordinate, for which A1 explained at the hearing of their application that they never received the decision in the mail, and that it was only later when they were informed by the Board thereof that they were subsequently able to obtain a copy, but by then they were already out of time with their leave application for judicial review.

19.  The record shows that the Board’s decision was sent on the same day of 4 January 2019 to the Applicants’ address at Room C, 11/F, 29 Nam Cheong Street, Sham Shui Po, Kowloon, but it is noted that in their notices of appeal filed with the Board, the Applicants in fact gave their address at Room A, 6/F, No. 17 Yen Chow Street, Sham Shui Po, while in their subsequent Form 86 of 4 July 2019, they gave another address at Room C, 1/F, 29 Nam Cheong Street, Sham Shui Po which appears almost identical as the one which the Board sent its decision except for the floor number of 1/F instead of 11/F. It is however not clear whether the decision so sent by the Board had in fact been returned through undelivered post, and given the long lapse of time since that A1 was unable to remember at the hearing of any details of their address at the relevant time in January 2019 which was more than 6 years ago, I am prepared to give the Applicants the benefit of the doubt by accepting their explanation for the delay with the filing of their application.

20.  However, as for the merits, if any, of their intended application, as noted above that the Applicants failed to put forward any proper ground for their intended challenge of the Board’s decision, nor was A1 able to do so at the hearing of their application other than just requesting for more time for A2 and A3 to complete their education in Hong Kong before returning to Vietnam which is of course not a proper ground to challenge the Board’s decision or a matter for the Court’s consideration. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

21.  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.

22.  In the Applicants’ case, the Board refused to allow the late filing of their notices of appeal against the Director’s Further Decision regarding their BOR 2 claim for reasons set out in its decision which I found proper and correct, and that on the factual basis of even their own case that their claims simply would not engage the BOR 2 ground due to its limited scope, while in re-visiting its own findings in its earlier decision on the other applicable grounds of torture risk, BOR 3 risk and persecution risk in the Board’s consideration of the merits of their appeals, of which the Applicants never sought leave to challenge by way of judicial review, but even if they did, it would also be in my view that the Board had not committed any fault or error in its findings as to the private and personal nature of the monetary disputes between A1 and her creditors without any official involvement that any risk which may arise would be negated by the availability of state protection and internal relocation to the Applicants upon their return to Vietnam that there would similarly not be any reasonably arguable basis to challenge the earlier decision of the Board either.

23.  Furthermore, as noted above that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate 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.

24.  In the premises, and 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 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 Applicants’ claims.

25.  I am of course mindful of the fact that both A2 and A3 being minors at their present age of 16 and 13 respectively are not legally represented in these proceedings as required under Order 80 rule 2 of the Rules of the High Court, nor were they in their appeals before the Board, and that it would therefore be necessary for the Court to scrutinize and examine whether their claims had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor‑specific non-refoulement bases that had not been properly advanced to the Board due to lack of legal representation in their appeals to the Board, as held to be essential by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and as elaborated by the same Court in Re Jasvir Singh [2021] HKCA 53 as to the proper approach in considering a minor’s claim as follows:

“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 a child. See: Fabio Arlyn Timogan, [34] – [35].

31. Second, when dealing with a non-refoulement 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 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 abnd 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.”

26.  In the present case, the claims of both A2 and A3 were premised fundamentally on A1’s claim of which the Board in its first decision did not take issue with the alleged risk from her creditors but found in the absence of any official involvement that state protection and internal relocation would be available to negate such risk, and given the fact that both A2 and A3 were born and raised in Vietnam with established connection to their home country and are entitled to all the rights and benefits as citizens as before prior to their departure as well as with supports from their family and relatives, I am unable to see any underlying matters specific to their personal circumstances that may support any potential non-refoulement grounds that might not have been advanced to the Board due to their lack of legal representation in their appeals, or for that matter in these proceedings of their leave application. As such, I do not find any merits in their leave application either, and shall accordingly treat their lack of legal representation as required by Order 80 rule 2 of RHC as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Re Jasvir Singh, supra.

27.  In the premises, and for all these reasons 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 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