NGUYEN THI LOAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 186/2021

[2022] HKCA 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 186 OF 2021

(ON APPEAL FROM HCAL NO 218 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 15 April 2021, Deputy High Court Judge C P Pang (“the Judge”) refused to grant leave to the 1^st and 2^nd applicants (collectively called “the Applicants”) to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 November 2018 in which the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 December 2016 rejecting the Applicants’ non-refoulement claims.

2.  On 22 April 2021, the Applicants filed a Notice of Appeal against the Judge’s decision.  

Background

3.  The 1^st applicant (“A1”) is a national of Vietnam and is the mother of the 2^nd applicant (her third son) (“A2”), born 13 January 2001, also a national of Vietnam.  They entered Hong Kong illegally on 6 April 2016 and surrendered to the Immigration Department on 8 April 2016.  A1 then lodged non-refoulement claims for herself and on behalf of A2 on the basis that if refouled, they would be harmed or even killed by her deceased eldest son’s creditor and his men because she was unable to repay the loan for her deceased eldest son.  The factual background was succinctly summarized by the Judge in [3] – [5] of the Form CALL-1 ([2021] HKCFI 967)

4.  By notice of decision dated 16 December 2016, the Director had rejected the Applicants’ claims on all applicable grounds and determined it against them.  The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

Board’s decision

5.  The Applicants appealed to the Board against the Director’s decisions.  An oral hearing was held on 18 September 2018.  The Applicants were represented by counsel assigned by the Duty Lawyer Service and the Director was represented by Government Counsel.  The Board considered the available evidence and the parties’ submissions, in particular the duty lawyer’s submissions that it should have regard to the “internal health and feelings” of the Applicants as well as the “vulnerable age” of A2, who was 6 years old when his brother was killed[5] (he was 17 at the time of the Board’s hearing).  The Board was not satisfied that A1 had provided a truthful account of her experiences in Vietnam, and her evidence was inconsistent in significant respects, lacking in credibility and unsupported by documents which she could reasonably have been able to obtain.[6]  

6.  Further, it was not accepted that her deceased eldest son had borrowed money from a loan shark; that he was shot and killed by loan sharks; that she or her husband were threatened, harmed or pursued by loan sharks; or that her husband and deceased eldest son died as a result of any connection with or harm from loan sharks.  The Board found that A1 had relied on the unfortunate death of her son after an attack following a traffic accident, and the subsequent death of her husband, to mount a claim for non-refoulement protection.[7] To conclude, the Board was not satisfied that the Applicants genuinely fear harm from loan sharks, nor are there substantial or strong grounds to suggest a real risk of harm upon their return to Vietnam.  Accordingly, their claims failed on all applicable grounds.[8]

Decision of the court below

7.  On 23 January 2019, the Applicants sought leave from the court to apply for judicial review against the Board’s decision.  By that time, A2 had reached the age of 18.    

8.  In Form 86 and the supporting affirmation of A1, the Applicants did not provide any proper grounds for relief but merely repeated their fears of harm from creditors.

9.  The Applicants did not request an oral hearing and the Judge disposed of the application on paper.  By the decision dated 15 April 2021, the Judge refused to grant leave to apply for judicial review and the reasons for the refusal were set out at [15] – [28] of the Form CALL-1 as follows:

“Problems with the mail

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 1^st applicant’s appeal/ petition on the ground that it disbelieved the 1^st 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 1^st applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the 1^st 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 1^st applicant.

21. The 2^nd 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 2^nd 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 2^nd applicant had completed his public school education [66].

25. I am satisfied that the 2^nd 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 2^nd 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 2^nd 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 2^nd 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.”

Appeal to this Court

10.  On 22 April 2021, A1 filed the Notice of Appeal for herself and on behalf of A2 against the Judge’s decision.  On 2 June 2021, the Registrar of Civil Appeals directed that unless A2 indicates to the contrary, the court would deem it to be the case that A1 has continued to represent him.  There was no indication to the contrary from A2. 

11.  Pursuant to the directions of Registrar of Civil Appeals made on 2June 2021, A1 lodged their written submissions on 9 June 2021.  In the Notice of Appeal, they did not provide any grounds of appeal, merely repeating their fear of harm by creditors of the deceased eldest son.  In their written submissions, there was merely a repetition of the background factual allegations and fear of harm by the creditors who, it is alleged, were still looking for them.

Legal principles

12.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in cases such as Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.  Here, the Applicants did not in the Notice of Appeal provide any meaningful ground of appeal, or identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.   

14.  As mentioned earlier, the Board had rejected the application on factual findings.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. We see none here.  Thus, as far as A1 is concerned, her appeal has no merit.

15.  As rightly pointed out by the Judge, A2 ceased to be a minor at the time of making the application for leave to apply for judicial review of the Board’s decision.  He was 17 at the time when A1 appealed the Director’s decision to the Board on his behalf, and therefore, the Board was obliged to review A2’s case in accordance with the principles set out inFabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971. 

16.  As shown at [22] – [25] of the Judge’s decision, the Judge had taken into consideration that both A1 and A2 were legally represented by Counsel at the Board’s hearing, A2 had a fair chance to present his case to the Board, and his personal circumstances had been separately and properly considered by the Board.  Thus, the Judge was satisfied that the high standards of fairness in dealing with the minor’s claim was achieved, and there was no underlying matter that might support minor-specific non-refoulement grounds which had not been considered by the Board.  The Judge had rightly concluded that it was plainly open to the Board to reject the appeal of A2 which is unmeritorious and there was no reasonable ground to challenge the Board’s decision in relation to A2’s claim.

17.  Having considered the material before us, we are of the view that the Judge’s observations and conclusions are fully justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that leave to apply for judicial review should not be granted.

18.  For all these reasons, we dismiss the Applicants’ appeal.