NGUYEN NGOC THIEM AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CACV 511/2021

[2022] HKCA 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 511 OF 2021

(ON APPEAL FROM HCAL NO 2019 OF 2018)

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J U D G M E N T

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

1.  On 18 November 2021, the 1^st and 2^nd Applicants, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 11 November 2021 (“the Order”) refusing to grant leave to the 1^st to 4^th Applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 21 September 2018. The Board dismissed the Applicants’ appeal against the decisions of the Director of Immigration (“the Director”)  dated 23 August 2016 and 9 October 2017.

BACKGROUND

2.  The 1^st Applicant (an ethnic Chinese born in Vietnam)  and the 2^nd Applicant (a Vietnamese)  are husband and wife, and the 3^rd and 4^th Applicants are their twin daughters.  The Applicants are nationals of Vietnam.  They entered Hong Kong illegally on 13 July 2015 and surrendered to the Immigration Department on the following day.  On 31 August 2015, they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam, they would suffer discrimination or persecution by the Vietnamese government due to the 1^st Applicant’s Chinese ethnicity.  Details of the Applicants’ claim were summarised by the Judge at §§1-4 of the CALL-1 Form.

3.  By a Notice of Decision dated 23 August 2016 and a Notice of Further Decision dated 9 October 2017, the Director dismissed the Applicants’ non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicants appealed the Director’s decisions to the Board.  On 21 September 2018, the Board dismissed the Applicants’ appeal and confirmed the Director’s decisions (“the Board’s Decision”).

5.  The Board found no reliable evidence from the 1^st and 2^nd Applicants in support of their claim of discrimination or persecution by the Vietnamese government or authorities or the community in general against the Applicants due to the 1^st Applicant’s Chinese ethnicity, or that the Applicants had been targeted by or was of interest to the Vietnamese government or authorities due to the 1^st Applicant’s Chinese ethnicity.  The 1^st and 2^nd Applicants had never approached the Vietnamese government or authorities for household registration or assistances over the years.  The Board considered that the problems faced by the 1^st Applicant and his family in Vietnam were caused by the 1^st Applicant’s refusal or failure to undergo proper personal and household registrations with the various authorities for himself and the family.  The Board found specifically that the reason why the 3^rd and 4^th Applicants were not allowed to go to school was because of the lack of household registration (see Board’s Decision at §35).

6.  The Board further considered that relevant Country of Origin Information (“COI”)  showed that there were laws in Vietnam which prohibited discrimination against ethnic minorities.  While societal discriminations might persist in some areas, such discriminations had not reached the level of being persecutory or otherwise inhuman or degrading treatment.  The Vietnamese government had made considerable efforts to combat them and provide protection to citizens in general.  There were also various programs in place in Vietnam to address the cause of discontent amongst ethnic minorities, improve education, health and road access in rural communities and villages as well as allocating land to ethnic minorities in the Central Highlands, and address the socioeconomic gap amongst ethnic minorities (see Form CALL-1 at §9).

7.  The Board concluded that the Applicants failed to establish their claim of risk of persecution, death, ill-treatment under BOR3 or torture upon their return to Vietnam, and their claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

8.  On 24 September 2018, the Applicants filed their Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

9.  On 11 November 2021, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“12. In the Applicants’ case, the Board rejected their claim for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 79 of its decision with the benefit of hearing both A1 and A2 in their oral evidence and their answers to questions raised of their claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the findings of the Board which had in my judgment correctly found no evidence of any discrimination or persecution against the Applicants by the Vietnamese government and authorities, and that any problems which they might have experienced in the past were self-inflicted by A1’s own failure to undergo proper registrations for himself or his household with the relevant authorities required by the law for the population, and for which I am unable to find any reasonably arguable basis or merits in their intended application for judicial review.

13. 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’ claim.

14. I am of course mindful of the fact that A3 and A4 are both minors still at age 16 were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that for the claims of minors it would be necessary to separately consider and examine whether their cases have been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board, as the proper approach held by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may [not] reach the level of persecution in the case of an adult may do so in the case of a minor.

15. In the present case, the claims of A3 and A4 were premised fundamentally on their father’s claim of risk of discrimination and persecution due to his Chinese ethnicity, but which have been found by the Board and based on his own evidence to have been caused by A1’s own refusal or failure to undergo proper personal and household registrations with the various authorities for himself and the family or to seek assistance from the government and without any evidence that there were any discriminations or persecutions by the Vietnamese government or non-state agencies that I am unable to see any material which may give rise to concern of any minor-specific non-refoulement grounds that might not have been advanced to the Board or considered by it because of the lack of legal representation for them before the Board.

16. As such and as I find that the intended judicial review of A3 and A4 also has no arguable merit, I shall therefore treat the absence of legal representation for them in these proceedings as a mere irregularity, as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.”

THIS APPEAL

10.  In the Notice of Appeal dated 18 November 2021, the 1^st and 2^nd Applicants merely set out the factual circumstances of their family and alleged that they had not been treated fairly, but failed to identify any alleged error of the Judge in his decision of 11 November 2021.

11.  In their 13-page written submissions dated 27 May 2022, the 1^st and 2^nd Applicants made generic submissions on some general principles of law and practice relating to non-refoulement claims.  They alleged that Vietnamese people had an anti-Chinese mentality, and it was inevitable that the Applicants would be treated unfairly in Vietnam.  They added that both the 3^rd and 4^th Applicants had developed persistent epilepsy and schizophrenia.  We note that no medical evidence has been produced in support of this matter, and it was not raised before the Judge.

DISCUSSION

1^st and 2^nd Applicants

12.  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’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.  In relation to the 1^st and 2^nd Applicants’ complaint of discrimination of ethnic minorities, it is well established that the assessment of evidence, COI, 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: 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.

14.  The 1^st and 2^nd Applicants have failed to point to or substantiate any alleged error of the Judge in his decision of 11 November 2021, and have failed to raise any viable ground of appeal against the Order.

3^rd and 4^th Applicants

15.  The 3^rd and 4^th Applicants are minor claimants.  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, the 3^rd and 4^th Applicants’ claims were premised fundamentally on the 1^st and 2^nd Applicants’ claim.  However, the Board, after considering the evidence of the 1^st and 2^nd Applicants, found their intention to seek protection in Hong Kong to be suspicious (see Board’s Decision at §§40-45), and rejected their claim of risk of persecution, death, ill-treatment under BOR 3 or torture.  In the circumstances of the present case, the rejection of the 1^st and 2^nd Applicants’ claim means that there is no factual basis to support the 3^rd and 4^th Applicants’ claim.

17.  We agree with the Judge that there is no material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 3^rd and 4^th Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 3^rd and 4^th Applicants before the Board.

18.  In the premises, we also find that the 3^rd and 4^th Applicants’ intended judicial review is not reasonably arguable.

19.  The Applicants’ appeal has no merits, and is dismissed.

20.  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 3^rd and 4^th Applicants’ appeal a nullity.

21.  Lastly, although the Notice of Appeal is written in Chinese, the present judgment is written in English because the judgment below and the 1^st and 2^nd Applicants’ submissions are both written in English.  If required, the 1^st and 2^nd Applicants may make arrangement with the court’s clerk for an oral interpretation of this judgment into Chinese at a mutually convenient time.