TO THI CHAU v. TORTURE CLAIMS APPEAL BOARD

CACV 135/2024, [2025] HKCA 546

On appeal from [2024] HKCFI 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2024

(ON APPEAL FROM HCAL NOS 1799 OF 2019 AND 1740 OF 2020
(CONSOLIDATED))

________________________

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1799 OF 2019

________________________

________________________

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1740 OF 2020

________________________

________________________

(Consolidated pursuant to the Order of Deputy High Court Judge Bruno Chan dated 3 April 2024)

_____________________

J U D G M E N T

_____________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 3 April 2024, Deputy High Court Judge Bruno Chan refused to grant leave to the 1^st to 3^rd applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims[1]. The applicants lodged a Notice of Appeal against this decision on 10 April 2024.

2.  The 3^rd applicant is a minor who was granted legal aid and got legal representation in September 2024. I granted leave for her to amend the Notice of Appeal on 17 January 2025[2]. Her amended notice of appeal was filed on 17 January 2025.

3.  The applicants have submitted their written consent to the appeal to be disposed of on paper without an oral hearing.

Background

4.  The 1^st applicant is a national of Vietnam who previously arrived in Hong Kong in 2004 as a visitor. She was deported out of Hong Kong after being convicted of the offence of handling stolen properties and upon serving her imprisonment. She entered Hong Kong again on 25 December 2015 illegally and surrendered to the Immigration Department on 4 January 2016 when she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditors for her outstanding debts.

5.  The 2^nd and 3^rd applicants are the son and daughter of the 1^st applicant. The 2^nd applicant was born in Vietnam on 15 February 2002. The 1^st applicant’s husband left her since 2010. She formed a relationship with another Vietnamese man during her stay in Hong Kong pending the determination of her non-refoulement claim. The 3^rd applicant was born in Hong Kong out of wedlock from this relationship on 15 April 2018.

6.  When the leave application was filed with the court below, the 2^nd applicant has become of age. The non-refoulement claims of the 2^nd and 3^rd applicants are based essentially on the same facts of the 1^st applicant’s fear of harm from her creditors over her unpaid debts upon their return to Vietnam.

The decisions of the Director 

7.  By a Notice of Decision dated 29 July 2016 and a Notice of Further Decision dated 30 November 2016, the Director of Immigration (“the Director”) rejected the non-refoulement claims of the 1^st applicant on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

8.  The non-refoulement claims of the 2^nd and 3^rd applicants were rejected by the Director on all applicable grounds by a Notice of Decision dated 28 February 2019.

The decisions of the Board

9.  The Board received the 1^st applicant’s notice of appeal against the Director’s decision on 15 May 2018. Her appeal against the Director’s first decision was late for more than 20 months and her appeal against the Director’s further decision on BOR 2 risk was late for about 17 months. The Board dealt with the late filing of the appeal on paper. The 1^st applicant explained that she had not filed an appeal within the prescribed time because she was serving imprisonment. She also indicated that she did not know that her non-refoulement claim had been rejected. The Board considered that the 1^st applicant’s bare assertions are not sufficient and her imprisonment is not a good reason for her late filing as it was always open to her to contact the Duty Lawyer Service for assistance. The Board found that her substantial delay is a serious and significant failure to comply with the rules and her reason for the delay is not acceptable. The Board therefore concluded there are no special circumstances in this instance that would make it unjust not to allow the late filing of the appeal and dismissed the application on 16 April 2019.

10.  The 2^nd and 3^rd applicants’ appeals against the Director’s decision to the Board were heard together before the Board on 23 July 2019. The 2^nd applicant, who was 17 years old at that time, attended the hearing in person with his mother the 1^st applicant. As the 3^rd applicant was only one year old at that time, she was excused from attending the hearing. The 1^st applicant (on behalf of the 3^rd applicant) and the 2^nd applicant chose not to give oral evidence nor answer questions from the Board at the appeal hearing. The Board considered that the respective evidence of the 1^st and 2^nd applicants contradicts each other, and found the evidence relating to the 2^nd and 3^rd applicants’ claims questionable and unreliable. The Board also noted that the 2^nd applicant was not harmed in the incidents in which he was allegedly abducted and threatened and nothing of significance had happened to the 3^rd applicant as she had not lived in Vietnam. On the totality of the evidence, the Board was not persuaded that the 1^st and 2^nd applicants had been threatened and assaulted by moneylenders, or otherwise ill-treated in Vietnam. The Board further considered that the claimed risk of harm from the moneylenders is of low intensity and indicative of a low future risk upon the 2^nd and 3^rd applicants’ return to Vietnam. The Board also found that the moneylenders were acting in their personal and private capacity without the involvement of any public official in the incidents claimed by the 1^st and 2^nd applicants. It assessed that reasonable state protection and internal relocation alternatives would be available to them in Vietnam. The Board concluded that the 2^nd and 3^rd applicants have failed to demonstrate they are entitled to non-refoulement protection in Hong Kong on any applicable grounds and rejected the appeal on 24 June 2020.

The intended judicial review

11.  The 1^st applicant filed a Form 86 and an affirmation on 28 June 2019 to seek leave to apply for judicial review against the decisions of the Board under HCAL 1799/2019. She also filed a Form 86 and an affirmation on 28 August 2020 for the 2^nd and 3^rd applicants to seek leave to apply for judicial review against the decisions of the Board under HCAL 1740/2020. She only reiterated the problems they may face in Vietnam without putting forward any specific grounds for their intended challenge.

The judge’s decision

12.  The two leave applications were consolidated and heard together before DHCJ Bruno Chan on 30 January 2024. The 1^st and 2^nd applicants attended the hearing in person and the 3^rd applicant (who was 5 years old at that time) was excused from the hearing. The judge held that the 1^st applicant did not have any valid ground to challenge the Board’s decision, and the Board’s failure to consider the merits of her appeal when refusing to allow the late filing of her appeal would not assist her case as the Board did subsequently give proper consideration and correct findings in its assessment and determination of her children’s claims which were based on the same primary facts as in her claim. The judge also found that the Board did properly consider the 2^nd and 3^rd applicants’ claims separately from their mother’s claim notwithstanding that they were based on the same set of primary facts and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to the lack of legal representation for them. Therefore, the judge concluded there is no prospect of success in the applicants’ intended judicial review and dismissed the leave applications on 3 April 2024.

Grounds of appeal

13.  In the Notice of Appeal filed on 10 April 2024, the 1^st and 2^nd applicants raised the following grounds:

(1)  If they return to Vietnam, their life will be seriously threatened or they will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people;

(2)  It is completely unfeasible for them to change to live in another location as they will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police, it is quite possible for the creditor and gangsters to find out the applicants’ new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

14.  In their written submissions[7], they further contended that:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  The adjudicator acted in a procedurally unfair manner without properly assessing their credibility.

15.  In the amended Notice of Appeal filed on 17 January 2025, the 3^rd applicant stated that the judge misapplied Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 and erred in failing to identify the minor-specific risk which is pertinent to her.

16.  In the written submissions[8], Ms Samantha Lau, counsel for the 3^rd applicant contended that:

(1)  The Board did not appear to dispute, among other things, that the 1^st applicant will likely have to work very hard to support her children including the 3^rd applicant;

(2)  The Board was aware that there is a live issue of children trafficking in Vietnam especially amongst families who struggle financially but did not analyse the 3^rd applicant’s risk of being trafficked or otherwise exploited upon her return to Vietnam;

(3)  The Board did not make any reference to the 3^rd applicant’s personal circumstances when arriving at the conclusion that state protection and internal relocation are available to the applicants;

(4)  The judge limited himself to matters of racial, ethnical and religious risks and failed to discern other risks specific to the 3^rd applicant in concluding that the Fabio ground was not an arguable ground. He erred in holding that the 3^rd applicant’s application for judicial review has no realistic prospect of success;

(5)  The Court of Appeal has a discretion to allow new points of law, questions of fact and mixed questions to be canvassed on an appeal in the interest of justice although the Fabio ground was not argued before the court below.

Legal principles

17.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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 Country of Origin Information (“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.

Analysis and disposition

19.  The judge has given detailed explanation for rejecting the 1^st and 2^nd applicants’ applications. Their grounds and submissions in the present case are just bare assertions without sufficient particulars or evidence in support. In particular, they failed to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. Thus, their appeal is devoid of merit and should be dismissed.

20.  However, it is necessary for the Court of Appeal to separately consider the position of the 3^rd applicant as she is a minor, see the Fabio case. She has not been legally represented in these proceedings in the Court of First Instance as required under Order 80, Rule 2 of the Rules of the High Court (Cap 4A).

21.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in the Fabio case and in Re Jasvir Singh [2021] HKCA 53. These cases established that:

(1)  Non-refoulement claims by minors, 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 minors;

(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 does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

22.  Ms Lau relied on a piece of COI[9] mentioned in the Board’s decision which stated that:

“[International Organization for Migration] stated that debt bondage is extremely common for children trafficked from rural regions in central and southern Vietnam. Debts may not be placed on the victim in their entirety – in many cases parents are expected to pay half of the fees. These families are not able to borrow money from banks, so turn to relatives or money lenders. Money lenders are often connected to the trafficking networks and act as an extra mechanism to further exploit the vulnerable victim and their family, as the debts are often subject to high interest rates. Families will be forced to sell their property to pay off the debts, particularly those secured through banks. Those family members who cannot pay off the debts have been subject to prevention violence and maiming, and some might have been killed.”

23.  She submitted there is a risk of the 3^rd applicant being trafficked or otherwise exploited in Vietnam which was not analysed in the Board’s decision.

24.  In the present case, the Board found that the applicants’ evidence relating to the facts on which the non-refoulement claims were based is questionable and unreliable. The Board was not satisfied that the 1^st and 2^nd applicants had ever been threatened and assaulted by moneylenders, or otherwise ill-treated, in Vietnam. The 3^rd applicant does not have any evidence or basis to refute such findings of the Board. When the primary facts which gave rise to the alleged risks from the moneylenders were not accepted by the Board, we do not see any basis to require the Board to further assess any future risk of harm to 3^rd applicant which may arise from the alleged indebtedness of her mother. The Board had already taken separate consideration of certain personal circumstances of the 2^nd and 3^rd applicants including the fact that the 2^nd applicant was not harmed in the alleged incidents and has not been harassed by his mother’s creditors since September 2011 up to October 2018 when he left Vietnam, as well as the fact that the 3^rd applicant has not lived in Vietnam and has not encountered any incident of significance. Under the specific circumstances of the present case as mentioned above, we consider that such separate consideration of the Board is adequate under the principles in the Fabio case.

25.  The evidence from the 1^st and 2^nd applicants showed that the 2^nd applicant was taken care of by the fellow villagers in Vietnam when he was a minor, when the 1^st applicant was serving her sentence in jail in Vietnam and after she left Vietnam for Hong Kong. Ms Lau’s submission that the 3^rd applicant will likely be left unattended as the 1^st applicant will have to work very hard to support herself and the 3^rd applicant is speculative and not supported by evidence.

26.  When the primary facts upon which the alleged risk of harm to the 3^rd applicant was based were not accepted by the Board, the issues of state protection and internal relocation do not arise and it is not strictly necessary for the Board to assess these issues. Therefore, the submissions about the Board’s failure to make any reference to the 3^rd applicant’s personal circumstances in the assessment of availability of state protection and internal relocation cannot assist the 3^rd applicant’s case.

27.  For the above reasons, we are not satisfied there is any underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to the lack of legal representation in the present case. We treat the absence of legal representation of the 3^rd applicant before the judge as a mere irregularity.

28.  We take the view there is no reasonable prospect of success in the 3^rd applicant’s intended judicial review and dismiss her appeal accordingly.

29.  As neither the Director nor the Board has actively resisted the appeal, we made no order as to the costs of the appeal, save that the 3^rd applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.