LUU THIEN AN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2799/2018

[2021] HKCFI 2244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2799 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are son and mother.  They made separate non-refoulement claims to the Immigration Department.  The 2^nd applicant made the first claim and later she lodged non-refoulement claim on behalf of the 1^st applicant.  The facts in support of the 1^st applicant’s claim are the same as those of the 2^nd applicant.  I shall refer to the first applicant as the son and the second applicant as the mother, unless otherwise stated below.

2.  The Director of Immigration (the “Director”) had made separate Decisions in respect of the mother’s claim and her son’s claim.  They are respectively dated 26 July 2017 and 17 November 2017 (the “Director’s 1^st Decision and 2^nd Decision”), rejecting their respective claims.

3.  The applicants separately appealed against the Director’s Decisions to the Board.  However, for reasons unknown, the son’s appeal was heard before the mother’s appeal.  The son’s appeal was dealt with by the Board’s Decision dated 29 May 2018, and the mother’s appeal by the Board’s Decision dated 24 January 2019.  Those Board’s Decisions are respectively called (the “Board’s 1^st Decision and 2^nd Decision”), rejecting their respective appeals.

4.  The applicants jointly apply for leave to apply for judicial review of the Board’s 1^st Decision in relation to the son’s appeal.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicants

6.  The mother is a citizen of Vietnam.  She was an illegal immigrant.  On 10 August 2015, she surrendered to the Immigration Department and lodged non-refoulement claim.

7.  The mother claimed that if refouled, she would be forced to be a prostitute by the creditor or even be killed because she was unable to repay her loan to the creditor.  She had borrowed 1 billion Vietnamese Currency from the creditor for her joint venture property business together with other partners.  The business turned out to be not profitable and she was unable to pay the monthly installments.  The creditor came with other people armed with weapons of wooden sticks, iron rods and knives to demand repayment of the loan.  The creditor threatened her that if she was unable to repay the loan, she would be forced to be a prostitute to make money.  She was scared and fled Vietnam for Hong Kong.  Details of the story are set out in paragraph 6 of the Director’s 1^st Decision described below.

The Director’s Decisions

8.  The Director considered their applications in relation to the following risks:

     i.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (the “Ordinance”) (“Torture risk”);

     ii.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

     iii.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

     iv.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By the 1^st Director’s Decision, the Director refused the mother’s claim for the reason that her claim was not substantiated.  The Director found that the level of risk of the mother being forced to be a prostitute, harmed or killed if she returned to Vietnam was assessed to be low [12]; that state protection was available to her [13] and that internal relocation was an option open to her [18].

10.  By the Director’s 2^nd Decision, the Director refused the son’s claim on the same grounds relating to his mother above.

The Board’s Decisions

The son’s appeal

11.  The son appealed to the Board against the Director’s 2^nd Decision.  The mother, acting as the guardian of the son, did not appear before the Board. 

12.  The Board was aware that the mother had also made non-refoulement claim and that the mother was a representative of the son. See paragraphs 2 and 3.

13. The Board proceeded to consider the son’s appeal by reference to the Director’s 1^st Decision on the mother’s claim, and by the Board’s 1^st Decision, rejected his appeal without considering section 15 of Schedule 1A of the Ordinance, which provides:

Hearing in a party’s absence

(1)  If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2)  Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must—

(a)  give the party written notice of the Board’s intention to do so; and

(b)  state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.

(3)  If the Appeal Board—

(a)  has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b)  is not satisfied with the party’s written explanation or supporting documentary evidence,

the Board may determine the appeal by making a decision under section 23(1) of this Schedule despite the party’s absence at the hearing.

14.  This issue will be discussed below.

The mother’s appeal

15.  The mother appeared before the Board on 11 January 2019 for her own appeal.  At the hearing, she adopted all the materials in the hearing bundle and confirmed that they were all correct.  The Board had also clarified certain matters with her.

16.  Having considered her evidence, the Board rejected her appeal and affirmed the Director’s 1^st Decision for the reasons that the treatment as alleged did not fall within the meaning of “torture” under section 37U (1) of the Ordinance [37]; that she failed to establish that there were substantial grounds for believing that she would be subjected to torture if she returned to Vietnam [39]; that for the same reasons, her BOR 3 claim failed [40]; that BOR 2 risk did not apply to her case [43]; that her case did not fall within the definition of persecution of the Refugee Convention [45] and internal relocation was an option open to her [49].

Application for leave to apply for judicial review of the Board’s 1^st Decision

17.  The applicants filed Form 86 on 7 December 2018 to apply for leave to apply for judicial review of the Board’s 1^st Decision.

18.  In the mother’s affirmation in support of their joint application, the mother repeated her case and said that the Board’s 1^st Decision was unfair.

DISCUSSION

19.  Although this application is for leave to apply for judicial review of the Board’s 1^st Decision, this is the applicants’ joint application.  In order to obviate any possibility of the mother making another application for leave to apply for judicial review of the Board’s 2^nd Decision, I shall consider the mother’s case in this application as well. This is lodged as the son’s appeal can depend on the mother’s facts.

20.  As the son’s claim was made separately, the immigration officer and the Board had considered his case separately.  Although the son was not legally represented before the Board and before this Court, this Court should follow the ruling of the Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 by treating the non-compliance with O.80, r.2 of the RHC as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.

21.  As to the Board’s non-compliance with section 15A of the Schedule 1A of the Ordinance, it amounts to procedural irregularity of the Board’s proceeding in relation to the son’s appeal.  However, I find that this procedural irregularity has been remedied by the mother’s appearance before the Board in her own appeal.  The son’s claim relies upon the facts of his mother’s case.  Even if the mother appeared before the Board for the son’s appeal, the enquiry by the Board would be the same as for her own appeal.

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

24.  The ground in support of this application is the mother’s opinion only.  It does not assist their application.

25.  The Court does not find any error of law or procedural unfairness in the Board’s 1^st Decision. The irregularity in the son’s appeal of hearing in the absence of the applicants was remedied by the mother’s appeal. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

26.  There is no evidence that shows that the applicants have any reasonable prospect of success in their intended judicial review.

CONCLUSION

27.  I therefore refuse to grant leave for the applicants to apply for their intended judicial review.  Accordingly, I 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