NGUYEN THI LAN ANH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2606/2019

[2025] HKCFI 2757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2606 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant, aged 46, is the mother. The 2^nd applicant is her ex-husband, aged 49. They are the parents and guardians ad litem of the 3^rd applicant, aged 16, and the 4^th applicant, aged 11, their sons. The 3^rd applicant was not a party in Form 86. Upon application by the 1^st applicant, leave was granted to join the elder son as the 3^rd applicant and the younger son becomes the 4th applicant.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 29 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The applicants appeared before the Court on 16 April 2024.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

5.  The applicants are nationals of Vietnam. The 1^st, the 2^nd and the 3^rd applicants came to Hong Kong illegally and they surrendered to the Immigration Department. The 4^th applicant was born in Hong Kong. According to the 1^st applicant, she and the 2^nd applicant had divorced in Vietnam, but they continued to cohabit together.

6.  The applicants lodged a non-refoulement claim, based on their fear of being harmed or killed by 3 creditors. They were 2 banks and 1 creditor called Mr Thua of triad background. It was because the 1^st and the 2^nd applicants were unable to repay the loans from them.

7.  According to the 1^st applicant, there were two incidents where Mr Thua came to their premises, scolded and attacked her and her husband. They had reported the matters to police. But the police did not make investigations into the matters. Mr Thua had also disturbed their elder son, the 3rd applicant, who had moved to live with his grandmother. They demanded the elder son to disclose the whereabouts of his parents and threatened to kill him if he refused to do so. However, he did not disclose where his parents were. They had also gone to his school and demanded him to disclose his parents’ whereabouts. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 21 July 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicants’ claims in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decision, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims. In summary, the Director found that: there were no threats or actual bodily harm on the 1^st applicant by the banks creditors and Mr Thua did not cause serious bodily harm to the applicants, and therefore there was a clear indication of a low future risk of harm for the family members, and there was no evidence to suggest that there would be a genuine and substantial risk from creditors [14-18]; state protection is available [19-21]; and internal relocation alternatives are available and reasonable if they return to Vietnam [22].

The Board’s Decision

10.  The applicants appealed the Director’s Decision to the Board. On 30 May 2018, the Board conducted an oral hearing for their appeals.

11.  Having considered the evidence, the Board found that the first two creditors had not threatened the applicants, as they had the security for their loans [45], and Mr Thua’s threats were only intended as an attempt to press the 1^st and 2^nd applicants to repay the money [50]. As to the 3^rd applicant, the Board found that even if those people who had threatened him to disclose his parents’ whereabouts were connected Mr Thua, it did not accept that they would harm or kill the 3^rd applicant if he refused to disclose his parents’ whereabouts. [52]

12.  In any event, the Board found that state protection was available [48-49] and it would not be unreasonable or unduly harsh for the applicants to internally relocate [55-56]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds.

13.  It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

14.  The applicants filed Form 86 in Chinese on 9 September 2019 for leave to apply for judicial review of the Board’s Decision. The applicants did not put forth any valid grounds in support of their application.

15.  In the 1^st applicant’s affirmation in support of their application, the 1st applicant deposed in Chinese that she is unable to repay the loans back to her creditors and will be in danger if they return to Vietnam. She also exhibited the Board’s Decision but did not put forward any valid grounds to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me.

18.  Bearing in mind that this Court has no power to make investigation into the facts of the applicants’ claim, it has the duty to ensure that the Board had discharged its duty of considering evidence which should be considered before it before making its decisions. I therefore asked the 1^st applicant if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The 1^st applicant asked me to consider that they are in difficult financial situation and they are not able to repay the debt; that their sons are being educated in Hong Kong; and that since she had divorced her husband, the status of the 4^th applicant is unclear. She produced the birth certificate of the 4^th applicant. On the birth certificate, it was written that the 1^st and the 2^nd applicants are mother and father of the 4^th applicant. Even if the 1^st and the 2^nd applicant were divorced, the 4^th applicant is still their son with Vietnamese nationality.

19.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in 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, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minors’ claims to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

20.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … 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 .”

21.  The Board had considered the 3^rd applicant’s situation separately. It did not accept that he will be harmed or killed if he refuses to disclose his parents’ whereabouts. However, the Board failed to consider what will happen to him if he returns to Vietnam. As to the 4^th applicant, the Board did not consider his future risk if he returns to Vietnam together with his parents. For these reasons, I have specifically raised the above child specific issues with the 1^st applicant in court.

22.  Those reasons raised by the 1^st applicant do not constitute valid reasons in support of the claims of the 3^rd and/or the 4^th applicant.

23.  The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

24.  Since this Court had raised the child specific issues with the 1^st applicant, whose answers do not give rise to any concern of potential non-refoulement grounds relating to the 3^rd and the 4^th applicants but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board, I consider that they do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

25.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

26.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

27.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and the 4^th applicants’ application a nullity.