Bejo Dinah Alcayde and Another v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2606/2018

[2021] HKCFI 1064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2606 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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

(1)   Leave for the applicants to apply for judicial review of the Board’s Decisions be granted; and

(2)   The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.  

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and her five-year old daughter. I shall refer to the first applicant as the applicant and the second applicant as applicant daughter, unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with their application on paper.

The applicants

4.The applicant came to Hong Kong as a domestic helper on 3 January 2013. Her employment contract was terminated prematurely. However, she overstayed and was arrested by police for breach of condition of stay. She lodged her non-refoulement claim with the Immigration Department. The applicant daughter was born in Hong Kong on 24 January 2015. The applicant lodged a non-refoulement claim on her behalf on 21 May 2015.

5.The applicant claimed that if refouled, she and her daughter would be harmed or even killed by her husband, Arnel Pronoble (“Pronoble”), who is a member of Moro Islamic Liberation Front (“MILF”).

6.She claimed that she married Pronoble in 2005. He was an abusive person. He always assaulted her after drinking, causing bruises to her body. She did not report to police. In 2006, she had an affair with her old schoolmate called Ali. Their affair was known to Pronoble. He took her home and assaulted her for half an hour. Shortly afterwards, she learned from her mother that Ali had been killed. She suspected that Pronoble had killed Ali. She was scared and went to Manila where she hid herself by living in different places. However, Pronoble was able to locate her from time to time. In May 2008, she came to Hong Kong to work as a domestic helper. She returned to the Philippines in 2010 and 2012 to visit her family. In December 2012, whilst at home, Pronoble appeared. In the course of conversation, he pulled out a gun and shot at her. He missed. But he hit her brother in the neck. Her brother received medical treatment in hospital. She fled and returned to Hong Kong. In Hong Kong she had a boyfriend called Elde Brando, with whom she gave birth to the applicant daughter in this case. Elde is an irresponsible person, who has already had his own family. He disappeared when he learned that she was pregnant. She cannot go back to the Philippines as police cannot protect her and relocation is not feasible because Pronoble has a wide network of contacts and he may find her and her daughter. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 6 August 2015 (“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 to believe that she and her daughter would be in danger of being harmed or killed by Pronoble if they returned to the Philippines [12]; that state protection was available to her [16] and that internal relocation was an option open to her [17].

9.By Notice of Further Decision dated 14 August 2017 (“the Director’s Further Decision”), the Director rejected their BOR 2 risk claim because the applicant and the applicant daughter were unable to establish their claim by evidence. [6]

10.It appears that the applicant daughter’s case was not separately assessed by the Director.

The Board’s Decision

11.The applicants appealed to the Board against the Director’s Decisions. The applicant attended a hearing before the Board on 8 November 2017.

12.For the reasons set out in the Board’s Decision, the Board, rejected her and her daughter’s appeal. I shall set out a summary of the reasons below.

(1)     The state was not involved in the incidents. [30-34]

(2)     The applicant had failed to establish, by evidence, that the applicant would be subjected to BOR 3 risk. [36-39 & 49]

(3)     The applicant failed to establish that she would be tortured by Pronoble if she returned to the Philippines. [40 & 49]

(4)     Reasonable state protection would be available to her. [41]

(5)     The applicant failed to establish that she was a refugee within the context of the Convention for protection. [60]

(6)     The applicant failed to establish risk under BOR 2. [70]

13.The Board therefore dismissed their appeal and confirmed the Director’s Decision and the Director’s Further Decision.

14.It is quite obvious that the Board had treated the applicant’s case and the applicant daughter’s case as a composite claim. No separate consideration has been taken for the applicant daughter.

Application for leave to apply for judicial review

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

16.In the applicant’s affirmation in support of their joint application, she said:

“I believe that I was treated inhumanly and with cruelty….I as beaten continually and was threated that I would be killed by Arnel, who is a member of the terrorist Group MILF.”

DISCUSSION

17.The Board has clearly not considered the situations of the applicant and her daughter separately.

18.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.”

19.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].”

20.In Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33, 14 January 2021, the Court of Appeal held:

“39. The 2nd applicant’s claim was presented by the 1st applicant as being based on the 1st applicant’s case. Both the Director and the Board had not given separate consideration to the 2nd applicant’s case or assessment of her situation if refouled…. …

42. In the present case, we are concerned that the 2nd applicant’s case might not have been fully presented to the Board and that there had not been a separate consideration and assessment of her claim and her situation upon refoulement…. …   For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.  There should also be separate assessment of risk of harm having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination.” 

21.I have further taken the following issues into consideration:

i.     This is a joint application by the applicants. As such, their application must be considered together.

ii.     The specifics for the child may also be applicable to the mother applicant, especially on their claim of relocation.

iii.     The Board said that it was not necessary for it to consider relocation. Given the facts of the case, if the Board is to re-consider the applicant’s daughter’s case separately, it may have to take this factor into consideration.

22.In the circumstances, it is apparent that the Board had not taken this relevant factor into consideration in its decision to reject the applicants’ application.

CONCLUSION

23.The Court will grant leave to the applicants to apply for judicial review of the Board’s Decision. The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.

Dated the 23^rd 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

Form CALL-1