DO THI HANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE [Decision on Leave Application]

DO THI HANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE [Decision on Leave Application]

Leave to apply for judicial review was granted because it is arguable the Board and the Director committed an error of law by failing to consider the minor's non-refoulement claim separately as required by appellate authority; that arguable error and the interconnectedness of the mother's and child's situations justified granting leave so the substantive merits can be reheard.

Citation
[2021] HKCFI 3250
Parties
1st Applicant: Do Thi Hang; 2nd Applicant (minor): Do Hei Yuet; Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 November 2021
Case Number
HCAL730/2019
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Granted (order to Issue Originating Summons Within 14 Days)
Outcome
Leave granted to the applicants to apply for judicial review of the Board's Decision
Legal Topics
Non Refoulement, Torture/cidtp, Refugee Convention (non Refoulement), Treatment of Children's Claims, Delay/late Filing Discretion
Source Language
EN
Immigration Administrative Law Constitutional Law Human Rights Non Refoulement Torture/cidtp Refugee Convention (non Refoulement) Treatment of Children's Claims +1 more

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Parties

Do Thi Hang

1st Applicant

Do Hei Yuet

2nd Applicant (minor)

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Granted (order to Issue Originating Summons Within 14 Days)

Legal Issues

  1. 1 Whether the Board and the Director erred in treating the child's non-refoulement claim as a composite claim with the mother's claim without separate consideration
  2. 2 Whether the Board properly exercised its discretion to allow or refuse late filing of the notice of appeal under section 37ZT of the Immigration Ordinance
  3. 3 Whether there were substantial grounds for believing the applicants faced a real and substantial risk of torture, CIDTP or persecution if returned to Vietnam

Ratio Decidendi

Leave to apply for judicial review was granted because it is arguable the Board and the Director committed an error of law by failing to consider the minor's non-refoulement claim separately as required by appellate authority; that arguable error and the interconnectedness of the mother's and child's situations justified granting leave so the substantive merits can be reheard.

Court Disposition

Leave granted to the applicants to apply for judicial review of the Board's Decision

Orders

  • Leave granted to apply for judicial review
  • The 1st applicant shall, on behalf of herself and the 2nd applicant, take out the originating summons within 14 days from the date of this Order as provided under Order 53 rule 5 RHC