PHAM THI LIEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CAMP 79/2024, [2024] HKCA 969

On an Intended Appeal From [2024] HKCFI 366 &

[2024] HKCFI 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1088 OF 2019)

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J U D G M E N T

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

1.  On 2 May 2024, the 1^st Applicant took out a summons for herself and on behalf of the 2^nd Applicant (a minor)  to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 1 February 2024 refusing to grant them leave to apply for judicial review (“the Order”).

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The 1^st Applicant is a national of Vietnam.  She claimed to have entered Hong Kong on 26 December 2015.  She was arrested by the police on 28 December 2015.  On 31 December 2015, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor Pham Thi Thuy over her outstanding debts.  She later gave birth to a son, the 2^nd Applicant (also of Vietnamese nationality), out of a relationship with another Vietnamese man in Hong Kong on 7 December 2017.  On 5 October 2018, she raised a non-refoulement claim on behalf of the 2^nd Applicant on the same basis of her claim and also on the basis that the 2^nd Applicant would require medical care due to brain hemorrhage suffered by him.  Details of the Applicants’ claims have been summarised by the Judge at §§1-4 and 9 of the CALL-1 Form.

4.  By a Notice of Decision dated 29 December 2016, the Director rejected the 1^st Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4] (“the Director’s First Decision”).

5.  On 12 January 2017, the 1^st Applicant lodged an appeal to the Board against the Director’s First Decision.  On 12 November 2018, the 1^st Applicant attended an oral hearing of her appeal before the Board, and gave evidence and answered questions put to her by the adjudicator.  On 16 April 2019, the Board dismissed her appeal, and confirmed the Director’s First Decision (“the Board’s First Decision”).

6.  The Board’s reasons for its first decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in A1’s claim that it did not consider her to be a credible witness and rejected her claim of having incurred a loan or that she had been threatened by her creditor over any loan that caused her to leave her country to come to Hong Kong to seek protection, and that in any event even if her claimed risk were true that it arose from a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to A1 upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

7.  By a Notice of Decision dated 16 January 2019, the Director rejected the 2^nd Applicant’s non-refoulement claim on all applicable grounds (“the Director’s Second Decision”).

8.  On 29 January 2019, the 1^st Applicant on behalf of the 2^nd Applicant lodged an appeal to the Board against the Director’s Second Decision. The Applicants did not attend a scheduled hearing before the Board on 20 September 2019.  They also failed to respond to the Board’s request to explain their absence.  On 19 December 2019, the Board dismissed the 2^nd Applicant’s appeal and confirmed the Director’s Second Decision (“the Board’s Second Decision”).

9.  The Board’s reasons for its second decision were summarised by the Judge at §12 of the CALL-1 Form, as follows:

“In this decision and apart from rejecting A2’s claim of fear of being harmed or killed by his mother A1’s creditor as not credible on the basis of its adverse findings on her credibility for the reasons as stated in its earlier decision, the Board also considered A2’s condition as evidenced by his medical report and relevant information and found that having since reached the age of 2 that A2 no longer has any medical or health issue that may cause any hindrance on his safe return with his mother to Vietnam where if necessary state protection would be available to him together with supports and assistances from various governmental departments and NGOs as well as reasonable internal relocation for him to move safely with his mother to other parts of the country away from his mother’s home district without any risk of being located that his claim for non-refoulement protection also failed on all the applicable grounds.”

10.  On 24 April 2019, the 1^st Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s First Decision.  No ground of review was given in the Form 86.  In her affirmation filed in support of the application, the 1^st Applicant merely repeated the factual basis of her claim.

11.  On 17 August 2020, the 1^st Applicant filed another affirmation to apply for leave to amend the Form 86 to join her son as the 2^nd Applicant to the application, exhibiting a copy of the Board’s Second Decision, a copy of the 2^nd Applicant’s birth certificate dated 12 February 2018 and a draft Amended Form 86.  The Judge granted the 1^st Applicant leave to amend the Form 86 on the same date.

THE JUDGE’S DECISION

12.  The Judge scheduled an oral hearing of the leave application on 28 December 2023, but the Applicants were absent from the hearing without any explanation.  On 1 February 2024, the Judge gave his decision refusing to grant leave to the Applicants to apply for judicial review, for the following reasons:

“[13] Meanwhile earlier on 24 April 2019 A1 filed her Form 86 for leave to apply for judicial review of the Board’s decision in dismissing her claim and appeal, and subsequently on 17 August 2020 she was also granted leave to amend the Form 86 to include A2 as the second applicant in the application given the fact that his claim was primarily based on her own claim and that it was rejected by the same Adjudicator for the Board, but no ground for seeking relief was given in the Form or in A1’s supporting affirmation for either of their application in which A1 just repeated their claims as before, nor did they subsequently attend the scheduled hearing of their application without any explanation. As such and in the absence of any error of law or irrationality or procedural unfairness in their respective processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenges.

…

[15] In the Applicants’ case, the Board rejected their claims based primarily on A1’s claim essentially on its adverse finding as to her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 - 36 of its decision of 16 April 2019 and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or judicial unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge such finding of the Board.

[16] Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claims if real is a localized one and that it is not unreasonable or unsafe for A1 to relocate with A2 to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[17] I am of course aware of the fact that A2 is still a minor at the age of 6 and was without legal representation in his appeal before the Board in 2019, and for that matter also in his present leave application for judicial review when neither he nor his mother A1 appeared at the scheduled hearing before the Court without any explanation, and that the proper approach to children’s non-refoulement claim was established by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 as follows ...

[18] With these principles the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to lack of legal representation for the minor.

[19] In the present case, as noted above it is clear that the Board did by a separate decision consider A2’s claim based on A1’s case of fear of being harmed or killed by her creditor over her unpaid debts upon return to Vietnam but which was rejected by the Board on its adverse finding on her credibility, and that the Board also separately considered and rejected A2’s claim of risk at [27] of its decision upon A1’s own evidence that her creditor was not even aware of the existence of A2 let alone to have done any harm or made any threats against him at all, a conclusion of fact which the Board was entitled to make on the evidence before it.

[20] Furthermore, the Board as also noted above did proceed to consider the medical issue or situation of A2 as raised by A1 in his medical report, and was satisfied that he has since been medical fit and that his health condition would not have any hindrance on his return to Vietnam with his mother, while relevant COI also show that apart from state protection being available to both A2 and his mother but also with supports and assistances from governmental departments and NGOs as well as reasonable internal relocation as noted above that I am satisfied that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and that its finding on A2’s case is justified and reasonable, and that there is no underlying matter that may support any other minor-specific non-refoulement grounds which had not been advanced before the Board, and hence there is no merits in A2’s intended application for judicial review notwithstanding that he has not been legally represented before the Board or the Court in the present application when the non-compliance with Order 80 rule 2 of RHC can be treated as a mere irregularity (see Jasvir Singh and Others [2021] HKCA 53 at [33]).

[21] In the premises, and having considered the decisions of both the Director and the Board on both Applicants with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the respective claims of both Applicants.

[22]  For the reasons given I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their leave application.”

13.  On 28 March 2024, the Judge refused the Applicants’ application by summons dated 26 February 2024 for an extension of time to appeal against the Order.

THIS APPLICATION

14.  By a summons taken out on 2 May 2024, the 1^st Applicant applied for herself and on behalf of the 2^nd Applicant to the Court of Appeal for an extension of time to appeal against the Order. 

15.  In the supporting affirmation of the 1^st Applicant filed on the same date, she states that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case and the situation in her home country, and says that the merits of this ground of appeal constituted sufficient justification for the court to exercise its discretion to allow the appeal out of time.  

16.  In a statement dated 2 May 2014 attached to the summons, the 1^st Applicant for herself and on behalf of the 2^nd Applicant asserts that if they return to Vietnam, their lives will be seriously threatened and they may even be killed because most of the creditors and gangsters in Vietnam are cruel and violent, and they are willing to kill people to satisfy their anger and ferocity.  She disagrees with the Director that she can relocate with the 2^nd Applicant to live in another part of Vietnam for various reasons.  She also alleges that the Immigration Department failed to consider their human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

17.  The Applicants have failed to lodge any written submissions in support of their application, contrary to the directions given by the Registrar of Civil Appeals on 13 August 2024.

DISCUSSION

18.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

19.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

20.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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 is a fresh application for judicial review (see Nupur Mst,at §14(6)).

21.  Further, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decisions of the Board is shown in the present case.

22.  In so far as the 1^st Applicant’s application is concerned, her complaint that the Judge did not give her an opportunity to clarify her case or the situation in her home country has no merits.  She was absent from the scheduled hearing on 28 December 2023 without any explanation.  The Judge was justified to consider her application on paper. Other allegations raised by the 1^st Applicant are bare, general assertions without particulars or evidence in support, and cannot constitute valid grounds of appeal.

23.  In relation to the 2^nd Applicant’s application, the Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33.

24.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim and also on his medical condition.  The Board, after considering the evidence in the case, disbelieved the 1^st Applicant and rejected her claim.  Once the 1^st Applicant’s claim has been rejected, the 2^nd Applicant’s claim, insofar as it is premised on the same factual basis underlying the 1^st Applicant’s claim, is left with no factual support.  In the Board’s Second Decision, the Board considered the 2^nd Applicant’s appeal separately from the appeal of the 1^st Applicant, and gave specific consideration to the 2^nd Applicant’s position, including his medical condition, but found that the 2^nd Applicant was not entitled to non-refoulement protection under any of the applicable grounds. 

25.  The Judge considered the 2^nd Applicant’s application separately, and concluded that there was no issue specific to the 2^nd Applicant as a minor which had not been advanced or considered by the Board because of the lack of legal representation for the 2^nd Applicant.  We agree with the Judge that there is no material which may give rise to a concern that there might be non-refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on his behalf before the Board.

26.  The Applicants have failed to point to or show any error in the Judge’s decision of 1 February 2024, and have failed to raise any viable ground of appeal against the Order.

27.  There is no prospect of success in the Applicants’ intended appeal.

DISPOSITION

28.  The application for extension of time to appeal is refused, and the Applicants’ summons of 2 May 2024 is dismissed.

29.  For the avoidance of doubt, the non-compliance with Order 80, Rule 2 in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.