TRAN THI DUNG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2188/2018

[2023] HKCFI 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2188 of 2018

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 Applicants in open court;

Leave for the Applicants to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 7 September 2018 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 June 2017 (the “Notice”). The Immigration Department is named as one of the proposed respondents in the Form 86, but no relief is sought against any decisions of the Director or his Notice.

2.  The Applicants also seek relief against a letter from their own counsel to the Duty Lawyer Service which advised that in counsel’s opinion the 3^rd Applicant has a ground for judicial review, that 1^st and 2^nd Applicants do not have a direct ground but have an indirect ground through the 3^rd Applicant.  That letter purports to be a legal advice to the Applicants.  It is not a decision of any administrative body.  It could not form the subject matter of judicial review.  Nevertheless, the Court will take the legal opinion expressed therein into account in this leave application insofar as it is arguably in favour of the Applicants.

3.  On 16 February 2023, the 1^st Applicant filed an affirmation applying to withdraw her leave application on her own behalf (the “withdrawal application”).  She confirmed that she does so on her own free will, that it is now safe for her to return to Vietnam and that she would like to return as soon as possible.  There are common factual issues in the 1^st and 2^nd Applicant’s claim.  The 1^st Applicant’s affirmation is to some extent prejudicial to the 2^nd Applicant’s claim.  In the circumstances, the Court considered it in the best interest of all Applicants to disregard the 1^st Applicant’s affirmation and to defer consideration of her withdrawal application until after determination of the 2^nd and 3^rd Applicants’ leave application.

4.  The 1^st and 2^nd Applicants are wife and husband and aged 35 and 36 respectively.  They are Vietnamese nationals.  The 3^rd Applicant, now aged 11, is their daughter.  The 1^st and 3^rd Applicants arrived in Hong Kong by air on 8 November 2013 and were permitted to stay as tourists until 22 November 2013.  The 2^nd Applicant entered Hong Kong illegally through Mainland China on 11 November 2013.  All of them surrendered to the Immigration Department on 25 November 2013 and applied for non-refoulement protection by way of written representation dated 11 March 2014.  In gist, their claim is that, if returned to Vietnam, the 1^st and 2^nd Applicants will be harmed or killed by their moneylender (the “moneylender”) and his associates for being unable to repay a loan of 1 billion Vietnamese Dong (“VND”) and that the 3^rd Applicant who is suffering from cerebral palsy will be at risk of death for not being able to receive medical treatment.

5.  In due course, their non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. By his Notice, the Director rejected their claim under all four applicable grounds under the USM.  They appealed against the Notice, but their appeal was dismissed by the Board’s Decision.  Now they apply for leave to apply for judicial review of that Decision.

6.  As the 3^rd Applicant is a minor, the 1^st and 2^nd Applicants who represented her had been advised by letter dated 29 March 2022 that their leave application had been adjourned to 29 June 2022 to enable them to seek legal representation whether by the Legal Aid Department or private solicitors.  Eleven months have since lapsed.  They did not respond.  No memorandum of application for legal aid had been received from the Director of Legal Aid.  The Applicants had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered the application may be justly determined on paper without an oral hearing and thus proceeds to make a determination.

The Applicants’ case

7.  The following account of the Applicants’ case is mainly based on the information in their non-refoulement claim forms (“NCF”) prepared by them with legal assistance and the record of their screening of interview conducted in the presence of their lawyer.

8.  The 1^st and 2^nd Applicants had received tertiary education.  The 1^st Applicant had worked as an accounting officer and receptionist.  The 2^nd Applicant had worked as a trainee sailor.  In early 2011, they borrowed a loan of 1 billion VND from a moneylender with triad background for the purpose of operating an aquaculture farm.  They had to repay interest and part of the principal in the sum of 100 million VND every three months.  Their farm was destroyed in a rainstorm in June or July 2011.  They were unable to repay.

9.  In early October 2011, the moneylender and his associates went to the Applicants’ home to collect payment.  The Applicants could not pay.  The moneylender and his associates left without causing them any trouble.

10.  In late October 2011, two of the moneylender’s associates went to the Applicants’ home to collect payment.  When they learned that the 1^st and 2^nd Applicants could not pay, they slapped and kicked the 2^nd Applicant.  They gave the Applicants extension of time to pay until early 2012.  The 2^nd Applicant suffered minor injuries and recovered in a week.

11.  On 30 January 2012, three of the associates went to the Applicants’ home to collect payment.  The 1^st Applicant was alone.  She could not pay.  The associates detained her in a house.  They did not give her any food and slapped her several times.  On 1 February 2012, they released her when they realized that she was about to give birth.  They warned her not to report the incident to the police otherwise they would harm her.

12.  On the following day, the 2^nd Applicant gave birth to the 3^rd Applicant.  Three to four days later, the 3^rd Applicant was diagnosed to be suffering cerebral palsy.

13.  Between February and September 2012, the moneylender visited the Applicants’ home two to three times.  They damaged their furniture, but did not cause them any physical injuries.

14.  On 29 September 2012, the 2^nd Applicant came to Hong Kong.  He overstayed and was sentenced to four weeks’ imprisonment.  He did not make any claim for non-refoulement protection.  He was repatriated to Vietnam on 13 June 2013.  While he was in Hong Kong, the moneylender’s associates visited the 1^st Applicant twice.  They reminded her that the 2^nd Applicant should repay but did not cause her any harm.

15.  Upon his return to Vietnam in June 2013, the 2^nd Applicant stayed in his friend’s home in Hai Phong.  Since his return, the moneylender’s associates visited the 1^st Applicant twice.  They told her that they knew the 2^nd Applicant had returned.  They threatened to harm her and the 3^rd Applicant if the 2^nd Applicant refused to pay.  But nothing eventful happened.  Then on 8 November 2013, the 1^st and 3^rd Applicants left Vietnam for Hong Kong.  Three days later, the 2^nd Applicant left for Mainland China.

Finding of the Board

16.  The Board accepted the medical condition of the 3^rd Applicant. Despite the absence of evidence of the loan or the various incidents alleged, it seemingly assessed the Applicants’ claim on the basis of the case as they asserted.

17.  It found the Applicants’ dispute with the moneylender, if there was such a dispute, was a private dispute.  It found no evidence that the ill-treatment allegedly suffered by the 1^st and 2^nd Applicants attained a minimum level of severity or that the threats had given rise to any substantial risk of harm.  It found no evidence that the moneylender and his associates were public officials of Vietnam, or state actors, or that any public official or persons able to wield the authority of the Vietnamese government or state had any connection with this claim.

18.  It found no evidence that the moneylender and his associates had ill-treated the Applicants with an intention listed in the definition of torture in section 37U of the Immigration Ordinance or that the alleged ill-treatment had any relevance to the interest and/or benefit of the Vietnamese government.

19.  It found no evidence that any of the Applicants had a well-founded fear of persecution for one or more of the reasons enumerated in Articles 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”).

20.  It found no evidence that the state of Vietnam was unwilling to help the Applicants for a Convention reason.  As the 2^nd Applicant had only reported the ill-treatment to the Vietnamese police or authorities once and did not follow up with his complaint, the Board was not satisfied that the Applicants have shown that they were unable to avail themselves of the protection from their home country.

21.  On the basis of authoritative and credible Country of Origin Information (“COI”), the Board was satisfied that the Appellants could avoid the risk of harm from the moneylender and his associates if they relocate to other areas in Vietnam and it would not be unreasonable to expect them to so relocate.

22.  Applying the legal principles applicable to non-refoulement protection under the USM to above finding of fact, the Board was not satisfied that the Applicants have established their entitlement to protection under any of the four applicable grounds under the USM in respect of the risk of harm from the moneylender and his associates.

23.  The Board gave separate consideration to the 3^rd Applicant’s case arising out of her medical condition and the quality of medical facilities available to her in her home country.  Having considered the legal principles as stated by the European Court of Human Rights in N v The United Kingdom[5], D v The United Kingdom[6] and Paposhivili v Belgium[7], the Board formulated the issue which it had to decide at paragraph 84 of the Decision as: whether substantial grounds have been shown for believing that if the 3^rd Applicant were to be removed, she would face a real risk, on account of the absence of appropriate treatment in Vietnam or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy.

24.  The Board directed its mind to the incontrovertible fact that the 3^rd Applicant had received medical treatments in Vietnam for one year and nine months since her birth and prior to her arrival in Hong Kong.  It noted from authoritative and credible COI that corruption in the public medical services sector in Vietnam was serious, but that government had taken positive actions in fighting corruption.  It accepted that Vietnam offers social health insurance to cover its poorest sector and that there are sufficient medical resources, including those from non-profit organisations, for treating infants with cerebral palsy.  It accepted the expert opinion from the Hong Kong Hospital Authority and found as a fact that there is no evidence to show that the 3^rd Applicant is facing imminent threat or danger to her life and that corruption in health care services in Vietnam would prevent her from receiving appropriate medical treatment.  The 3^rd Applicant had been under the care of the 1^st and 2^nd Applicants and had family support in Vietnam.  It was therefore satisfied that the Applicants had failed to show that if refouled to Vietnam, the 3^rd Applicant would face a real risk, on account of the absence of appropriate treatment in Vietnam or the lack of access to such treatment or that such treatment is offered at a substantial cost, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy.  The Board had even taken into account the impact of the 3^rd Applicant’s flight back to Vietnam.  The Board was therefore not satisfied that the Applicants had established that the 3^rd Applicant is entitled to protection under any of the four applicable grounds under the USM in respect of the risk of harm arising from her medical conditions and the inadequacy of the health care facilities in Vietnam.

Legal principles applicable to judicial review

25.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

26.  The Applicants did not advance any specific grounds of application in their Form 86.  In their supporting affirmation, they repeated their fears and risks from their moneylender and his associates.  In effect, they are seeking to dispute the finding of fact by the Board.  For reasons as explained above, this is not permissible.  In the absence of specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

27.  As indicated earlier, this Court will treat the advice contained in the Applicant’s counsel’s letter to the Duty Lawyer Service, insofar as it is in the Applicants’ favour, as their grounds of application.

Ground (1): The Board misconstrued N v United Kingdom

28.  The Applicants’ counsel argued that “it seems that the Adjudicator misconstrued that the N decision was to qualify or limit the effect of Paposhivili v Belgium[9] in fact it is the other way round”.

29.  The Board’s deliberation on the law is contained in Paragraphs 82 to 84 of its Decision.  In Paragraph 82, the Board referred to Paposhivili v Belgium which referred to the principle stated in N v The United Kingdom.  In Paragraph 83, it quoted Paragraph 42 of N v The United Kingdom which referred to D v The United Kingdom.  In N v The United Kingdom, the Grand Chamber of the European Court of Human Rights held at Paragraphs 42 to 45 of its decision:

“42. In summary, the Court observes that since D v UK (1997) 2 BHRC 273 it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the contracting state is not sufficient in itself to give rise to breach of art 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under art 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In D v UK (1997) 2 BHRC 273the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43. The court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v UK (1997) 2 BHRC 273 and applied in its subsequent case law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.

44. Although many of the rights it contains have implications of a social or economic nature, the convention is essentially directed at the protection of civil and political rights (Airey v Ireland [1979] ECHR 6289/73at para 26). Furthermore, inherent in the whole of the convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Soering v UK[1989] ECHR 14038/88at para 89). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the contracting state and the country of origin may vary considerably. While it is necessary, given the fundamental importance of art 3 in (2008) 25 BHRC 258 at 275 the convention system, for the court to retain a degree of flexibility to prevent expulsion in very exceptional cases, art 3 does not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the contracting states.

45. Finally, the court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost.”[10] (Emphasis added by the Board)

30.  In Paragraph 82 of its Decision, the Board quoted Paragraph 183 of Paposhivili v Belgium that:

“183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N v the United Kingdom (para 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.  The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”

31.  Chronologically, these cases came before the courts in the reverse order with D v The United Kingdom as the leading decision in 1997 which laid down the general principle that the serious mental or physical illness of an alien subject to removal may raise an issue under the Convention only in a very exceptional case.  What is “very exceptional” was left open, but it is clear that the threshold is very high.  The very exceptional case in D v the United Kingdom was that the alien was critically ill, close to death, absence of any nursing or medical care in his country of origin and absence of family support and care, not even a basic level of food, shelter or social support.  N v The United Kingdom put a gloss on the principle in D v The United Kingdom by clarifying that Article 3 does not place an obligation on the contracting states to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction.  The examples in those cases were not intended to be the test of what is a very exceptional circumstance, but clearly demonstrate the very high threshold required to be attained to prove such a circumstance.

32.  In Paragraph 84 of its Decision, the Board adopted all the principles quoted in these three cases and formulated the issue raised by the 3^rd Applicant’s claim as follows:

“Based on the above authorities, the questions to be asked are that if substantial grounds have been shown for believing that if [the 3^rd Applicant] would to be removed, she would face a real risk, on account of the absence of appropriate treatment in Vietnam or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy.”

(My emphasis added)

D v The United Kingdom and N v The United Kingdom have been consistently followed in subsequent cases.  Given the authoritativeness of these decisions, the Board could not have erred in law when formulating the above issue by applying these authorities.

33.  Having regard to the chronological development of the law as revealed in these three cases and Paragraph 183 of Paposhivili v Belgium, it is clear that Paposhivili v Belgium is just another example of a “very exceptional case”.  It did not lay down any standalone principle.  The Applicants’ counsel was being semantic in arguing that the Adjudicator erred in law by misconstruing N v The United Kingdom as qualifying or limiting the effect of Paposhivili v Belgium.  The Board had taken all these examples into account when formulating the issue in Paragraph 84 of its Decision.  The Board was absolutely correct.  Impliedly, counsel was arguing that the effect of Paposhivili v Belgium was to expand or relax the principle in N v The United Kingdom or to lower it threshold.  That, with respect, is clearly wrong.

34.  In Paragraph 87 of the Decision, the Board specifically found in answer to the issue it formulated that the Applicants failed to show that if refouled to Vietnam, the 3^rd Applicant would face a real risk, on account of the absence of appropriate treatment in Vietnam or the lack of access to such treatment or that such treatment is offered at a substantial cost, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy.  It had specifically taken into account the Paposhivili exceptional considerations, be they examples of the broader requirements under N v The United Kingdom or the standalone requirements as the Applicant’s counsel labelled them.  There is no substance in this ground or their counsel’s opinion.

Ground (2): The Board erred in finding that the 3^rd Applicant’s conditions were not considered as emergency medical conditions and that there was no evidence that she is facing imminent threat or danger to her life

35.  The Board said in Paragraphs 85 to 87 of its Decision:

“85. The Conditions are not considered as emergency medical conditions by the Hospital authority in Hong Kong and that there is no evidence to show that [the 3^rd Applicant] is facing imminent threat or danger to her life. It is noted that [the 3^rd Applicant] had received medical treatments in Vietnam for one year and nine months since her birth prior to her arrival in Hong Kong. Corruption in health care sector in Vietnam did not prevent [the 3^rd Applicant] from receiving medical treatments.

86. According to COI, Vietnam offers social health insurance to cover the poorest and that there are sufficient medical resources for treating infants with cerebral palsy. Further, there are non-profit organisations in Vietnam that offer assistance and medical treatments to infants who suffered from cerebral palsy.

87. Based on the above, the Applicants had failed to show that if refouled to Vietnam, [the 3^rd Applicant] would face a real risk, on account of the absence of appropriate treatment in Vietnam or the lack of access to such treatment or that such treatment is offered at a substantial cost, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy.  Further, it is noted that [the 3^rd Applicant] had been under the care of her parents and that they have family in Vietnam who could care for her or provide her with even a basic level of food, shelter or social support.  There was no evidence to show that flight from Hong Kong to Vietnam would have any impact on the Conditions of [the 3^rd Applicant].”

36.  The Board’s finding that the 3^rd Applicant’s conditions were not considered as emergency medical conditions is based on the expert opinion of the Hospital Authority.  There is no credible medical opinion to the contrary.

37.  The thrust of counsel’s argument based on the Applicants’ expert’s letter is the risk of suffocation which the 3^rd Applicant would face if she continued to be fed with food orally because the Applicants could not obtain or afford a continuous supply of feeding tubes.  He challenged the Board’s finding that the 3^rd Applicant’s needs would be covered by medical insurance as she is over six years old and would not be attending school. He also doubted if she could receive assistance from charitable organizations because of the huge demand by the number of children suffering from cerebral palsy in Vietnam.

38.  All these arguments had been considered and rejected by the Board based on authoritative and credible COI.  The 3^rd Applicant is not receiving any particular treatment in Hong Kong other than anti contraction drugs and was advised to return to Vietnam for treatment: see paragraph 31 of the Notice.  According to Country of Origin Information Report of Vietnam issued on 3 March 2017 by the United States Department of State, Vietnam has 774 general hospitals, 136 specialized hospitals and 11,576 primary health centres providing grass root health care network: see paragraph 25.01.  The Vietnamese government developed a national social health insurance programme.  It also introduced programmes specifically targeting the poor and the near poor which has also been incorporated into the national social health insurance programme: see paragraph 25.05.  There is also no shortage of news reporting successes in stem cell transplant in treating children suffering from cerebral palsy: see Vietnam Net Bridge dated 21 May 2015.  On the basis of these and other COI, it was open to the Board to make the above finding as it did.  This is a finding of fact solely within the province of the Board to make, which this Court will not interfere save where the finding is tainted by error of law, procedural unfairness and irrationality.  There is none.

39.  Furthermore, even if the 3^rd Applicant may not be covered by medical insurance, there is nothing to suggest that she could not obtain assistance from charitable or non-governmental organisations.  Counsel’s arguments are mere speculations unsupported by credible evidence, which the Board was entitled to reject on the face of the authoritative and credible COI about the Vietnamese health care system and its improvement.

40.  This ground is in effect an attack on the Board’s finding of fact.

Ground (3): Procedural impropriety and unfairness and irrationality.

41.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review.  As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

42.  The Board assessed the Applicants’ claim in respect of their fear and risk of harm from the moneylender and his associates on the basis of the case as they asserted but found there was no evidence to support the factual basis of their claim to non-refoulement protection under any of the four applicable grounds under the USM.   This finding is fatal as the Applicants bear the burden of proof.  The Board also found that they could avoid the risk of harm by the moneylender and his associates by internal relocation.  The Board therefore found as a matter of law that the 1^st and 2^nd Applicants and the 3^rd Applicant insofar as her claim is founded or dependent on theirs is concerned, are not entitled to non-refoulement protection under any of the four applicable grounds under the USM.

43.  The Board also made a separate assessment in respect of the 3^rd Applicant’s claim based on her medical condition and the availability (or non-availability) of health care in Vietnam.  For reasons as explained in Paragraphs 23, 24 and 32 to 34 above, the Applicants have also failed to prove the 3^rd Applicant’s entitlement to protection under any of the four applicable grounds under the USM on that basis.

44.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicants failed to discharge their burden of proving their fears and risks and entitlement to non-refoulement protection.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save where such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The 2^nd and 3^rd Applicants’ proposed judicial review has no realistic prospect of success.

Conclusion

45.  Having thoroughly considered the case of all the Applicants, this Court is satisfied that their leave application, including the 1^st Applicant’s were it to proceed, would have no prospect of success.  In view of that, this Court is satisfied that the 1^st Applicant would be safe returning to Vietnam and that she made the withdrawal application on her own free will as she alleged.  Accordingly, the Court respects her wish to withdraw her leave application and allows her withdrawal application. 

46.  This Court is conscious of the lack of legal representation for the 3^rd Applicant.  As there is no merit in the 3^rd Applicant’s claim, whether independently on the merit of her own case or jointly with the 1^st and/or 2^nd Applicants, this Court treats her lack of legal representation as a mere irregularity.   As the 2^nd and 3^rd Applicants’ intended judicial review has no prospect of success, their leave application is refused.

47.  As against all the Applicants, the Board’s Decision stands.

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