MAC THI HIEU AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CACV 640/2025, [2026] HKCA 681

On Appeal From [2025] HKCFI 3416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.640 OF 2025

(ON APPEAL FROM HCAL NO. 1863 OF 2019)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court)  :

Introduction

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge Bruno Chan (“Judge”)  dated 12 August 2025 refusing their application for leave to apply for judicial review the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  dated 4 January 2019 (“Board’s Decision”)  whereby the Board declined to allow the late filing of the Applicants’ notice of appeal /petition against the decision of the Director of Immigration (“Director”)  9 January 2017 (“Director’s Decision”)  rejecting their non-refoulement claim under Article 2 of the Hong Kong Bill of Rights (right to life)  (“BOR 2 Risk”).

2.  As noted by the Judge at paragraphs [5]-[11] of the Form CALL-1 dated 12 August 2025 (“Form CALL-1”), the Director had previously assessed and rejected the Applicant’s claim under the other applicable grounds, ie, BOR 3 risk, torture risk and persecution risk. Their appeals against these previous decisions of the Director were rejected by the Board.  These earlier decisions of the Board were not further challenged.

3.  The 1^st Applicant (“A1”)  has not taken any step to comply with Order 80, rule 2 of the Rules of the High Court, Cap 4A (“RHC”), for the appointment of a next friend or solicitor for the 2^nd Applicant (“A2”), her son or the 3^rd Applicant (“A3”), her daughter.  Nevertheless, this appeal can be, and is, allowed to stand as the Court has a discretion under Order 2, rule 1 of the RHC to treat such non-compliance as a mere irregularity without rendering the proceedings a nullity.

Background

4.  The Applicants are nationals of Vietnam.  A1 lodged a non-refoulement claim on behalf of herself, A2 and A3 with the Immigration Department on the basis that, if refouled, she would be harmed or killed by her mother’s creditors over her unpaid debts.  The claim of A2 and A3 was based on the same facts advanced by their mother.

5.  The Applicants’ non-refoulement claim was rejected by the Director on 8 July 2015, and the appeal to the Board was dismissed on 16 November 2016, in respect of BOR 3 risk, torture risk and persecution risk.  On 12 December 2016, the Director invited the Applicants to furnish further information in support of their BOR 2 risk claim.  The Applicants failed to respond.  By the Director’s Decision, their BOR 2 claim was rejected.

6.  By the time the Applicants lodged their appeal to the Board against the Director’s Decision, it was out of time by 1 year and 3.5 months.  The Board declined to allow the late filing of the Applicants’ notice of appeal/petition on the grounds of the substantial delay, unacceptable explanation for the delay and the obvious lack of merit in the BOR 2 claim.  Details of the Applicants’ background, their process before the Director and the Board, as well as the Board’s reasons for rejecting the Applicants’ appeal had been summarised in paragraphs [1]- [14] of the Form CALL-1.  The hyperlinks to Board’s decisions dated 16 November 2016 and 4 January 2019 can be found in the Form CALL-1, [11] and [13].

7.  The Applicants’ application for leave to apply for judicial review was filed outside the statutory timeframe of 3 months from the Board’s Decision.  After considering the length of the delay, the reason for the delay, the merits of the intended application and potential prejudice to public administration, it was dismissed by the Judge and details of the Judge’s reasons can be found in the Form CALL-1. 

Grounds of Appeal

8.  By a Notice of Appeal filed on 22 August 2025, the Applicants seek to appeal the Judge’s decision to this Court.  The Applicants’ grounds of appeal can be summarised as follows :

(1)  The Applicants will face the risk of being harmed or killed by the creditors if they returned to Vietnam;

(2)  Internal relocation as suggested by the Director is completely infeasible;

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

9.  The appeal was scheduled to be heard on 16 April 2026.  The Applicants have failed to lodge any skeleton argument in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals on 9 March 2026.  Accordingly, the Applicants are deemed to have waived their right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper.  Having considered the documents before the Court, we are of the view that it is appropriate to deal with this appeal on paper without an oral hearing.

Legal Principles

10.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

11.  The 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 or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

Discussion and Disposition

12.  In this case, no error of law or procedural unfairness or irrationality in the decision of the Board was detected by the Judge[1].  The grounds of appeal are bare assertions without particulars.  They lack substance and do not constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision in respect of A1.

A2 and A3

13.  It is necessary for this Court to consider separately the position of A2 and A3 as they are minors who are not been legally represented in these proceedings or in the court below as required under Order 80, rule 2 of the RHC.

14.  The proper approach to deal with children’s non-refoulement claims has been established by the Court of Appeal in Fabio Arlyn Timogan & Ors v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, and in Re Jasvir Singh & Ors [2021] HKCA 53 §§30 to 33.  The main principles are :

(1)  Non-refoulement claims by children are separate from those advanced by their parents and must be considered individually, having regard to the personal circumstances of each child;

(2)  Even if the claims are based on the same set of primary facts, it is an error of law for the decision-maker to treat all claims as a composite claim without separate consideration of each child’s circumstances;

(3)  Ill-treatment which may not amount to persecution in the case of an adult may do so in the case of a child;

(4)  Where a minor is unrepresented, the Board has a duty to proactively consider whether there are child-specific risks that have not been advanced due to lack of legal representation;

(5)  The court, when reviewing such cases, must consider whether the minor’s claim has been properly assessed as a separate claim;

(6)  If there are underlying matters that may support minor-specific grounds not advanced before the Board, the court may grant leave for judicial review and direct legal representation for the minor;

(7)  If the Board has achieved a high standard of fairness and there are no such underlying matters, the court may dismiss the minor’s application even if the minor was unrepresented, treating non-compliance with Order 80, rule 2 of the RHC as a mere irregularity.

15.  It is evident from paragraphs [25]-[26] of the Form CALL-1 that the Judge was aware of and applied the above legal principles in dealing with the non-refoulement claims of A2 and A3.  He considered those claims separately from that of their mother and found no minor-specific issues that might have supported their claims but had not been advanced before, or considered by, the Board owing to the absence of legal representation.  In particular, the Judge agreed with the Board that state protection and internal relocation were available to A2 and A3.  Further, they were both born and raised in Vietnam with established family connections and are entitled to all the rights and benefits as citizens there. 

16.  Having examined the materials before us, we are unable to see any error of law or procedural unfairness in the Director’s Decision or the Board’s Decision, nor was there any failure to apply high standards of fairness in their consideration and assessment of the Applicants’ claims.

17.  We discern nothing which can give rise to any minor-specific concern that relates to A2 and A3.  In any event, the matters set out in the Applicants’ Notice of Appeal failed to identify any error on the part of the Judge.  In our view, the Notice of Appeal contains no viable grounds of appeal in respect of A2 or A3.  There is no basis for this Court to interfere with the Judge’s refusal of leave in their cases.

18.  This appeal has no merits.  We dismiss it accordingly with no order as to costs.

[1]  Form CALL-1, [24].