Sioangan Wilna Pagao Sioangan Raja Ayyan Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 2604/2018

[2021] HKCFI 1036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2604 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants are mother and son, who is now aged about 4 years old. I shall refer to the first applicant as the applicant and the second applicant as applicant son, unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 9 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant son’s case relies upon the facts of the applicant.

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

The applicants

4.The applicant came to Hong Kong and worked as a domestic helper in December 2010. Her employment contract was terminated prematurely.  She was allowed to stay for a short period of time.  However, she overstayed and was arrested on 5 November 2011.  She lodged her torture claim with the Immigration Department on 19 December 2011.  She did not report to the Immigration Department in August 2012. Her application therefore lapsed.  She was arrested by police on 15 December 2013.  She re-submitted her torture claim on 20 January 2014.  On 15 December 2016, she withdrew her claim. On 24 April 2017, she applied to re-open her non-refoulement claim.  On 10 July 2017, she lodged non-refoulement claim on behalf of her son, who was born in Hong Kong on 1 May 2017.

5.The applicant claimed that if refouled, she and her son would be harmed or killed by her parental grandfather because of her conversion into a Muslim and her son being born out of wedlock.  Her grandfather has a high position in the local community of practice of paganism in the Philippines.  He is very concerned about his position and his honour in the pagan community.  He regards any member of his family converting to Muslim as a disgrace to his position and he would be doing anything to protect his position, including killing his family member.  According to her mother, he had killed his own sister because she converted to Muslim.  The applicant married to a man called Larry in accordance with her grandfather’s instruction.  Larry was an abusive person. They had three children in the Philippines in the care of the applicant’s mother.  The applicant worked in Hong Kong as a domestic helper in November 2010 in order to be away from Larry.  Whilst in Hong Kong, she met a Pakistani called Raja and fell in love with him.  She gave birth to a son, who is the applicant son in this case.  She was led by Raja to convert into Muslim.  She told her mother about herself in Hong Kong.  Her mother advised her that her grandfather would be furious about her conversion into Muslim and her son and he might harm her and her son if they returned to the Philippines.  Her non-refoulment claim is based upon the facts above.

The Director’s Decision

6.The Director considered their applications in relation to the following risks

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

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

7.By Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her and her son being harmed or killed by her grandfather if they returned to the Philippines [13]; that state protection was available to her [18]; internal relocation was an option open to her [19].

The Board’s Decision

8.The applicants appealed to the Board against the Director’s Decision.  They attended a hearing before the Board on 3 September 2018.  The Board had considered the applicant’s case and the applicant son’s case.

9.The Board had had a protracted examination of her case by raising questions with the applicant. It came to the findings at paragraph 55 of its Decision.

a.  On the totality of the evidence, the Board was not satisfied that either the applicant or her son faced a real chance of harm of any nature in the Philippines.

b.  The applicant changed her evidence in the course of investigation by the Board, which found her not a witness of truth.

c.  The Board had doubt about the character of her grandfather as she described.

d.  The Board did not believe that she had converted to Muslim; that she and Raja had gone through a formal Muslim marriage; that she had genuine and ongoing commitment to the Islamic faith; that she would continue to have Muslim belief in the future wherever she would be and that she intended her son to follow the Islamic faith.

10.For the reasons above, the Board rejected their claim of the Torture risk [64]; the BOR 3 risk [70], the BOR 2 risk [72] and the Persecution risk [76].

11.The Board therefore dismissed their appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 19 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In the applicant’s affirmation in support of their joint application, she enclosed the documents of the hearing bundle without specifying the grounds in support of her application.

DISCUSSION

14.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

“14 (1) … …Assessment of evidence and COI materials and 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

15.The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

“(a) 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 circumstances of each claimant;

(b) 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;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child.”

16.This decision was followed by the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021. The Court of Appeal further directed as follows:

“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 [referring to the Fabio case], 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].”

17.The Board, having considered the applicant’s evidence, went further to consider the applicant son’s case.  It came to the conclusion that the applicant did not intend to have her son to have Islamic faith when they returned to the Philippines.  Under those circumstances, the applicant son would have no genuine or real risk of harm if he returns to the Philippines.  The Board has, therefore, given separate consideration to the son’s personal circumstances.

18.There are no underlying matters in this 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.

19.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20.I therefore refuse to grant leave for the applicants to apply for their intended judicial review.  Accordingly, I dismiss their joint application.

Dated the 22^nd day of April 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence