NGUYEN QUANG HIEN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 135/2021

[2022] HKCA 1704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2021

(ON APPEAL FROM HCAL NO 1289 OF 2018

and HCAL 1660 OF 2018)

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J U D G M E N T

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

A. INTRODUCTION

1.  This is the applicants’ appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) as set out in the Form CALL-1 dated 23 March 2021 (“the HCAL 1289 & 1660 Consolidated Decision”) ([2021] HKCFI 672).[1]

2.  By the HCAL 1289 & 1660 Consolidated Decision, the Deputy Judge ordered, inter alia, that HCAL 1289/2018 be consolidated with HCAL 1660/2018 and refused the applicants’ consolidated application for leave to apply for judicial review.

3.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 27 June 2018 (“the Board’s Decision”), rejecting the applicants’ respective non-refoulement claims.

4.  On 29 March 2021, the 1^st applicant on behalf of the applicants indicated their consent for this appeal to be disposed of on paper.[2]  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.[3]

B.     BACKGROUND

5.  The applicants are a family of Vietnamese nationals. The 2^nd applicant is the 1^st applicant’s wife and the 3^rd applicant is their daughter, who is mentally incapacitated.  For convenience, we will refer to the 1^st applicant as “the Husband”, the 2^nd applicant “the Wife”, and the 3^rd applicant “the Daughter”.

6.  The Father entered Hong Kong illegally on 5 July 2015 and raised a non-refoulement claim by way of written representations respectively dated 15 July 2015 and 24 July 2015, on the basis that he would be harmed or killed by loan sharks as he and the Mother failed to repay the loans made to them.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 28 April 2017 on the applicable grounds including torture risk^[4], BOR2 risk[5], BOR3 risk^[6] and persecution risk^[7].

7.  The Mother and Daughter later also entered Hong Kong illegally on 2 November 2015 and raised their non-refoulement claim on 11 May 2016, on the similar basis that they would be harmed or killed by the loan sharks given the Father and Mother’s failure to repay the loans.  The Daughter also claimed (through the Mother) that she came to Hong Kong on the advice of a doctor that she required medical treatment and operation for a digestive problem.  Their non-refoulement claim was rejected by the Director on the applicable grounds including torture risk, BOR2 risk, BOR3 risk and persecution risk by way of the Notice of Decision dated 2 September 2016 and the Notice of Further Decision dated 25 July 2017.

8.  The Father, Mother and Daughter subsequently appealed together against the above-mentioned Director’s decisions to the Board and an oral hearing was conducted before the Board with the assistance of a Vietnamese interpreter on 19 April 2018.  The Father and Mother gave evidence at the hearing for themselves and also on behalf of the Daughter.  By way of the Board’s Decision, the Board dismissed their appeals.  In gist, the Board found that the evidence given by the Father and Mother was evasive and deliberately misleading.  The Board had no doubt that their accounts of loans, a trucking business, violence at the hands of loan sharks and related matters were simply an invention.  As to the medical condition of the Daughter, the Board also found inconsistent claims as to her medical needs and no reliable evidence that she was receiving any treatment whatsoever for any medical condition.  Accordingly, the Board concluded that all the applicants failed to substantiate their case on all applicable grounds and dismissed their appeal.

C.    THE DEPUTY JUDGE’S DECISIONS

C1.    HCAL 1660/2018 – the Mother and Daughter’s application for leave to apply for judicial review

9.  On 17 August 2018, the Mother and Daughter filed an application for leave to apply for judicial review against the Board’s Decision under HCAL 1660/2018 (“HCAL 1660”).  The Mother acted in person and also on behalf of the Daughter.  As they both failed to attend the oral hearing before the Deputy Judge on 19 June 2019, the Deputy Judge considered their application on paper.

10.  By way of the decision in the CALL-1 Form dated 27 December 2019, the Deputy Judge dismissed their application ([2019] HKCFI 3139) (“the HCAL 1660 Decision”).  In gist, the Deputy Judge was satisfied that the Board was prudent in its assessment of evidence and there was nothing amiss in its finding of facts; and as the Board did not accept the facts as stated by the applicants in support of their claim, they had no factual basis for their claim.  Accordingly, the Deputy Judge concluded that their intended judicial review had no reasonable prospect of success and the Deputy Judge refused to grant them leave to apply for judicial review.  See [15] ‑ [18] of the HCAL 1660 Decision.

11.  On 2 January 2020, the Mother and Daughter filed a summons with a supporting affirmation seeking “leave to appeal” against the HCAL 1660 Decision.  As they did not require leave to appeal against the HCAL 1660 Decision but nevertheless failed to file any Notice of Appeal within time, the Deputy Judge treated their application as an application for extension of time to appeal against the HCAL 1660 Decision.  The Deputy Judge dismissed this application by his decision dated 24 July 2020 ([2020] HKCFI 1645) (“the HCAL 1660 EOT Decision”), finding that the intended appeal had no reasonable prospect of success.

12.  More than five months later, on 4 January 2021, the Mother and Daughter filed another summons and supporting affirmation to apply for “extension of time to appeal” against the HCAL 1660 EOT Decision (“the January 2021 HCAL 1660 Summons”).

C2.  HCAL 1289/2018 – application by the Father

13.  Meanwhile, on 5 July 2018 (ie, before the Mother and Daughter’s application for leave to apply for judicial review under HCAL 1660/2018), the Father himself filed a separate application for leave to apply for judicial review against the Board’s Decision under HCAL 1289/2018 (“HCAL 1289”).  As he did not ask for an oral hearing, the Deputy Judge dealt with his application on paper.  As matters turned out, apparently by the time when the Father’s application under HCAL 1289 came to be dealt with by the Deputy Judge, he had already by then dealt with and dismissed the HCAL 1660 application by way of the HCAL 1660 Decision and the HCAL 1660 EOT Decision, leaving the January 2021 HCAL 1660 Summons (see above) yet to be considered.

14.  Faced with the above circumstances and status of HCAL 1289 and HCAL 1660, by way of the HCAL 1289 & 1660 Consolidated Decision, the Deputy Judge first ordered and directed that:

(1)  The matter under HCAL 1289 be consolidated with HCAL 1660 so that they were to be dealt with together as one matter and the Father shall be named as the 1^st applicant, the Mother, 2^nd applicant and the Daughter, 3^rd applicant;

(2)  The application for extension of time to appeal to the Court of Appeal in the HCAL 1660 (ie, the January 2021 HCAL 1660 Summons) shall be stayed, with liberty to apply;

(3)  Form Call-1 dated 27 December 2019 (ie, the HCAL 1660 Decision) shall apply to this consolidated matter;

(4)  Form Call-1 dated 27 December 2019 (ie, the HCAL 1660 Decision) shall be delivered to the Father, the 1^st applicant in this matter;

(5)  All applicants in this consolidated matter be at liberty to appeal to the Court of Appeal the decisions in Form Call-1 dated 27 December 2019 (ie, the HCAL 1660 Decision) and this Form Call-1 (ie, the HCAL 1289 & 1660 Consolidated Decision) within 14 days from the date of this Order (Order 53, rule 3(4) of the Rules of the High Court (“the RHC”));

(6)  Liberty to apply.

See: [1] ‑ [14] of the HCAL 1289 & 1660 Consolidated Decision.

15.  The Deputy Judge explained his reasons for so ruling at [11] and [12] of the HCAL 1289 &1660/2018 Consolidated Decision as follows:

“11. Order 53, rule 12 of the RHC:

Consolidation of applications (O. 53, r. 12)

Where there is more than one application pending under section 21K of the Ordinance against several persons in respect of the same office, and on the same grounds, the Court may order the applications to be consolidated.

12.   The Board had made the Decision on the common facts of the family. The wife and daughter have indicated that they would appeal against this Court’s decision. If the husband’s application is to be dealt with separately, there is a high probability that the husband may also appeal to the Court of Appeal against this Court’s decision. This Court will invariably adopt its decision in relation to the wife and daughter, upholding the Board’s Decision. The final consequences will be that there will be separate applications to this Court for appeal out of time and further, separate appeals to the Court of Appeal. This will cause duplication of costs and time.”

16.  The Deputy Judge then went on to consider the Daughter’s leave to apply for judicial review application as an incapacitated applicant in accordance with the principles laid down in Re: Jasvir Singh [2021] HKCA 53 and Fabio Arlyn Timogan [2020] HKCA 971, and dismissed her application again[8]. See [15] ‑ [18] of the HCAL 1289 & 1660 Consolidated Decision.

17.  Finally, he concluded at [19] of the HCAL 1289 & 1660 Consolidated Decision that he maintained his decision in the HCAL 1660 Decision and dismissed all the applicants’ application for leave to apply for judicial review of the Board’s Decision.

D.    THIS APPEAL

18.  Apparently pursuant to the leave to appeal granted by the Deputy Judge under the HCAL 1289 & 1660 Consolidated Decision, on 29 March 2021, the applicants filed a Notice of Appeal in support of their appeal against the HCAL 1289 & 1660 Consolidated Decision.

19.  In their Notice of Appeal, they again repeated the factual basis of their non-refoulement claim, and that the loan sharks and their men had damaged their properties and threatened and caused physical harm to them.  They alleged that they escaped to Hong Kong for the safety of their lives, and that the loan sharks were still looking for them.

20.  As the Daughter is a mentally incapacitated person, by the directions made by the Registrar of Civil Appeals on 14 May 2021, the Father and Mother were also directed to take steps on behalf of the Daughter as soon as possible to comply with Order 80, rule 2 of the RHC, which may include applying for legal aid for the conduct of applicants’ appeal.

21.  On or about 24 June 2022, the Mother applied for legal aid on behalf of the Daughter.  Her application was refused by the Director of Legal Aid on 24 August 2022.  To date, the Daughter remains legally unrepresented.

22.  At the same time, contrary to the directions made by the Registrar of Civil Appeals dated 23 July 2021, the applicants did not lodge any written submissions in support of their appeal.

E.   ANALYSIS

E1.  The nature of this appeal

23.  Before turning to the merits of the present appeal, we should first set out some of our concerns as to the approach taken by the Deputy Judge in the HCAL 1289 & 1660 Consolidated Decision.

24.  We have doubts as to whether the Deputy Judge had the jurisdiction to make the order to consolidate HCAL 1660 with HCAL 1289 and then to effectively consider again the Mother and Daughter’s application for leave to apply for judicial review and dismiss them again by way of the consolidated decision. This is so since, as mentioned above, the Deputy Judge by the earlier HCAL 1660 Decision has already dismissed their applications on merits and that order has been sealed.  He is therefore functus insofar as the leave to apply for judicial application under HCAL 1660 is concerned.  There is no jurisdiction for him to consolidate HCAL 1660 (which has already been dismissed) with HCAL 1289 as he sought to do.

25.  Similarly, there is also no jurisdiction for him to seek to reconsider the merits of the Mother and Daughter’s application under HCAL 1660 again under the “consolidated proceedings” by adopting or applying the same reasons in the HCAL 1660 Decision.

26.  Once it is seen that it was not open to the Deputy Judge to consolidate HCAL 1660 with HCAL 1289 and to effectively reconsider and re-dismiss HCAL 1660, there can also be no question that he could then grant leave to the Mother and Daughter to appeal against the HCAL 1660 Decision (see [14(5)] above).  This is particularly so as he had by way of the HCAL 1660 EOT Decision already refused to extend time for the Mother and Daughter to appeal the HCAL 1660 Decision.

27.  In our view, given the unfortunate chronology as to the time when the two applications respectively under HCAL 1660 and HCAL 1289 came to be dealt with by the Deputy Judge as outlined above, the proper course for the Deputy Judge to take with the January 2021 HCAL 1660 Summons and the Father’s application in HCAL 1289 was for him to (a) dismiss the January 2021 HCAL 1660 Summons for cause if he was minded to do so,[9] and (b) dismiss the Father’s application for leave to apply for judicial review under HCAL 1289 (relying on the same reasons he had stated in the HCAL 1660 Decision).  The Mother and Daughter could then reapply to this court for leave to appeal out of time against the HCAL 1660 Decision, while the Father could simply appeal to this court against the dismissal of HCAL 1289 as of right.

28.  For the above reasons, we would set aside the consolidation order made by the Deputy Judge and proceed to treat the present appeal as:

(1)  The Father’s appeal against the dismissal of his application for leave to apply for judicial review under HCAL 1289.

(2)  The Mother and Daughter’s fresh application for extension of time to appeal against the HCAL 1660 Decision[10].

29.  In relation to the Mother and Daughter’s re-application for extension of time to appeal against the HCAL 1660 Decision, given the chronology of the proceedings as mentioned above, the most important consideration is the merits of their intended appeal.

30.  As to the Father’s appeal, its success also depends on the merits of successfully challenging the HCAL 1660 Decision since the Deputy Judge, as explained above, dismissed the Father’s application by adopting the same reasons in the HCAL 1660 Decision.

31.  As we will further explain below, we are of the view that the intended appeals against the HCAL 1660 Decision are wholly without merit.

E2.    Discussion

32.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

33.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the RHC.

34.  Nowhere in their Notice of Appeal did the applicants identify any error made by the Deputy Judge in the HCAL 1660 Decision itself or as incorporated in the HCAL 1289 & 1660 Consolidated Decision.  General assertions of their fear if refouled simply do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As there is no viable ground of appeal, the Father’s appeal and the Mother and Daughter’s re-application for extension of time to appeal must fail on this basis alone.

35.  As to the Daughter, being a mentally incapacitated person, her position is similar to that of a minor, and thus is subject to Order 80, rule 2 of the RHC.[11]

36.  In this respect, the Court’s approach in considering non-refoulement claims-related judicial review involving minors, which in our view should be equally applicable to mentally incapacitated persons, is set out in Re Jasvir Singh [2021] HKCA 53, at [30] ‑ [33] as follows:

“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.”

37.  In the present case, the Daughter’s claim is premised fundamentally on the Father and Mother’s claims.  The Board, after considering the evidence of the Father and Mother, disbelieved them and found their accounts and claims to be evasive, misleading and incredible: see [36] ‑ [47] and [51] of the Board’s Decision.  Once the Father and Mother’s claims have been rejected, the Daughter’s claims are left with no factual support.  Moreover, the Board had indeed further separately considered the Daughter’s claims based on her medical needs and found the same to be inconsistent and incredible: see [47] ‑ [51] of the Board’s Decision.  The Board thus arrived at the conclusion that all the applicants failed to substantiate their claims on all applicable grounds: see [52] ‑ [56] of the Board’s Decision.  The Board was fully entitled to reach this conclusion on the basis of its assessment and evaluation of the evidence and there are no valid public law grounds raised by the applicants to challenge this conclusion.

38.  Further, we also do not see that there are any materials filed in these applications which will give rise to any concern that there may be non‑refoulement grounds that relate specifically only to the Daughter but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

39.  In the premises, there is also no merit in the Daughter’s intended appeal against the HCAL 1660 Decision.

F.   DISPOSITION

40.  For the above reasons, the Father’s appeal and the Mother and Daughter’s re-application to appeal against the HCAL 1660 Decision out of time plainly are both without merit. Accordingly, we will dismiss the Father’s appeal and the Mother and Daughter’s re-application for leave to appeal out of time.

41.  We will make the following orders:

(1)  The consolidation order made by the Deputy Judge in respect of HCAL 1660 and HCAL 1289 be set aside; and

(2)  Subject to paragraph (1) above, the Notice of Appeal dated 29 March 2021, which shall be treated in the manner indicated in [28] above, be dismissed.

42.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the Daughter’s application a nullity.