Lavado Mary Jane Mabao and Another v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2697/2018

[2021] HKCFI 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2697 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and son, who was born on 29 November 2014 and is now aged about 6 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 20 February 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.  Their joint application filed on 28 November 2018 is late.  I shall deal with this issue below.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“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.

4.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

5.The applicant is a citizen of the Philippines.  She first came to Hong Kong as a domestic helper in 2012.  She applied for a visitor’s visa after termination of her employment.  Her application was acceded to by the Director.  However, she overstayed and surrendered to the Immigration Department on 27 June 2014.  She gave birth to the applicant son.  She lodged a non-refoulement claim with the Immigration Department by way of two significations dated 23 July 2014.

6.The applicant claimed that if refouled, she and her son would be disowned and even killed by her family members because they would not accept her relationship with her husband, who is a Muslim.  She married her husband, who is a Muslim whilst she was in Hong Kong in 2015.  She told her father about that for his approval.  He did not approve.  She asked her brothers to persuade her father to approve the relationship.  They disagreed too.  They threatened that if she returned with her son, they would disown her and even kill her and her son.  Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

7.The Director considered their application 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 21 February 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that the level of risk of being harmed by her family if she and her son returned to the Philippines was assessed to be low [12]; that state protection was available to her [15]; internal relocation was an option open to her [16].  The applicant son’s case was not assessed separately.

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decision.  The applicant attended a hearing before the Board on 29 January 2018.  The Board had not considered the applicant’s case and the applicant son’s case separately.  It treated their claim as a composite claim.

10.For the reasons set out in the Board’s Decision, the Board, rejected her and her son’s appeal.  The Board found that the applicant was not a witness of truth and she had fabricated claims in relation to the circumstances surrounding the disclosure of her pregnancy and relationship with her husband. [33] The Board had taken into consideration the inconsistency of her evidence in relation to her statement given to the immigration officer and to the Board and came to the conclusion that her family was not taking adverse attitude to her relation with her husband as she claimed and that they would not harm or take hostile actions against her or her son if they returned to the Philippines.  The applicant and her son would not have any risk of harm should they return to the Philippines.  Their claims therefore failed.  See paragraphs 33-43.

Application for leave to apply for judicial review

11.The applicants filed Form 86 on 28 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation in support of their joint application, she said that she rejected the findings of the Immigration Department as they disregarded her dangerous situation.

DISCUSSION

13.As mentioned in paragraph 2 above, their application is late.

14.In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall first consider the merits of their case.

15.The Board has clearly not considered the situations of the applicant and her son separately.

16.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:

“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;

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;

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.”

17.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].

33. Third, on the other hand, 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.”

18.In this case, this Court comes across the situation where on the one hand, the Board had not considered the applicant son’s case separately, contrary to the ruling of the Court of Appeal in Fabio’s case and on the other hand, there is no factual basis in support of the applicant’s on application.  The reason for the Court of Appeal to hold such irregularity against the finding of the Board is on the basis of consideration of the personal circumstances of the applicants: “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.”  However, in this case, the Board found that ill-treatment is simply non-existent.  Absent any fact of ill-treatment, there is no child specific in this case for the Board to consider separately.  In the circumstances, I shall consider applying the reason in Jasvir Singh’s case that there is no such underlying matter that may support minor specific non-refoulement grounds which had not been advanced before the Board.  I shall therefore treat the fact that the applicant son was not legally represented before the Board nor before this Court as a mere irregularity.

19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

20.I find that there is no evidence that shows that the applicants have any reasonable chance of success in their intended judicial review.

CONCLUSION

21.I therefore refuse to extend time for the applicants to apply for leave for judicial review.  Accordingly, I dismiss their joint application.

Dated the 25^th day of May 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