Gano Crisanta Dulnuan and Another v. Torture Claims Appeal Board

HCAL 2498/2019

[2021] HKCFI 3811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2498 of 2019

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 hearing counsel for the Applicants 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 1^st applicant is the 2^nd applicant’s mother.  The 2^nd applicant was given birth in Hong Kong on 27 November 2003. He is now of age.  This is their joint application.

2.Counsel Lewis Law, on the instructions of Messrs. T.C. Tong & Company, solicitors, acted for the applicants under the Legal Aid Scheme. The application for amendments to Form 86 was approved as per the draft submitted to Court on the court’s file.

3.The applicants’ applications are based upon the factual basis of the 1^st applicant.

The applicants

4.The applicants had made torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) with the Immigration Department and the Director rejected their application on 21 October 2011.  They appealed to the Torture Claims Appeal Board (the “Board”) and their appeal was dismissed. Their claim for non-refoulement on other grounds of BOR 2 risk, BOR 3 risk and Persecution risk were dealt with under the unified screening mechanism as described below.

5.The applicants were arrested by police on 24 February 2021 for overstaying and failing to produce proof of identity.  Upon enquiry, the 1^st applicant admitted that she first entered Hong Kong in April 1992 as a domestic helper.  In 1996, she came to Hong Kong as a domestic helper with limit of stay extended to 29 April 2001.  She did not depart as required and had overstayed since 30 April 2001.  While overstaying in Hong Kong, she gave birth to the 2^nd applicant on 27 November 2003.

6.In her amended Form 86, she claimed that, if refouled, her husband would harm her and the 2^nd applicant, her son, who was born in Hong Kong out of her relationship with a Ghanaian boyfriend.  She also claimed that she would be subject to Ifugao Law and the Filipino Revised Penal Code on the basis of her adultery, and the application of such laws to her entailed risks of violation of her rights under Article 2 and 3 of the Hong Kong Bill of Rights (“HKBOR”).  She further claimed that by reason of her critical illness (including, but not limited to, HIV and cervical carcinoma), refoulement of her would expose her to death or a serious, rapid and irreversible decline in her health.

The Director’s Decision

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

a.  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”);

b.  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

c.  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 31 August 2017 (“the Director’s Decision”), the Director refused the applicants’ claim.  The Director found that the level of risk of harm from Samson Gano, her husband upon their return to the Philippines was assessed to be low [22]; that the level of risk of her and her son being subjected to harm was lowered or negated as reasonable state protection was available to them [29-31]; that the internal relocation was an option open to the 1^st applicant [18]-[20]; that the Philippines government would provide reasonable assistance to women and children in need [32-38]; that internal relocation was an option open to them [39-44].

The Board’s Decision

9.The applicants appealed against the Director’s Decision to the Board. At the hearing on 7 December 2018, they were legally represented by a duty lawyer Patrick S.L. Wong.

10.Pursuant to section 37 of the Ordinance, the notice of appeal was prepared by the duty lawyer and filed with the Board. Insofar as relevant to this proceeding, the grounds of appeal are:

(1)   the immigration officer had under-estimated the severity and the threats of Samson Gano, her husband;

(2)   the immigration officer had failed to discern (1) Ifugao laws which applies locally; and (2) Penal code of the Philippines which applies to the whole country;

(3)   the immigration officer did not provide any information in support of state protection and the viability of internal relocation in support of his findings; and

(4)   the claimants do not agree that state protection is available.

11.At paragraphs 13 and 30 of the Board’s Decision, it stated:

“13. The Appellants are appealing against the decision of the Director of Immigration on the basis that their lives are in great danger from Samson, the 1^st Appellant’s husband, should they return to the Philippines.

30. The essential issue is whether there are substantial grounds for believing that the Appellant[s] would be subjected to torture, punishment, degrading and ill-treatment or killed should she and her son the 2^nd Appellant be removed to the Philippines; whether they would be entitled to protection under CIDTP and Article BOR 2 and 3 of BOR and whether there is a persecution risk on the return to the Philippines.”

12.Having considered the evidence and legal submissions from the respective legal representatives, the Board found below.

(1)   As to BOR 3 risk, it is clear from the CNN Philippines reports that the 1^st applicant would be able to receive free treatments for her HIV condition as well as for her other health issues. [36]

(2)   As to Persecution risk, the Board found: ‘39. … it has been shown that the 1^st Appellant’s health issues can and will be treated in the Philippines.  She will not be without State assistance on her return to the Philippines.’ ‘40. The Appellants should be safe should they relocate to a city or town in the Philippines.  …As to the concerns of the 2^nd Appellant’s ethnicity, race and language, should the Appellants relocate to a cosmopolitan city in the Philippines, his being of a different race would not be a concern compared to living in a small village in the rural area of the Philippines.  Furthermore, he would be able to acquire the language and skills like all local children. For the aforesaid reasons, I find the Appellants’ fear is speculative and not well-founded….’

(3)   As to BOR 2 risk, the Board found that the applicants had failed to provide any evidence in support of their claim on this ground. [42]

(4)   As to State protection, the Board found: ‘43. … There are a number of NGOs and international bodies established in the Philippines that offer help to victims of domestic abuse in the Philippines….’ ‘44. According to the USSD report referred to above, the police and the military continued to provide human rights training to their members, augmented by training from the Commission on Human Rights, the CHR. There are also the Ombudsman Office and the Armed Forces of the Philippines AFP Human Rights Office to monitor human rights abuses in the Philippines. There is therefore sufficient state protection should the appellants be minded to seek such protection.’

(5)   As to internal relocation, the Board found: ‘47. The Appellants are therefore free to relocate to other parts of the Philippines on their return to the Philippines…’

13.For the reasons above, the Board confirmed the Director’s Decision and dismissed the applicants’ appeal.

Application for leave to apply for judicial review

14.The applicants jointly filed Form 86 for leave to apply for judicial review of the Board’s Decision.

15.The applicants have filed their affidavits in support of their application. I shall discuss Counsel’s submissions on their behalf below.

DISCUSSION

16.Counsel’s submissions will be considered on the bases of the following legal principles.

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

“13. (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.”

20.The Court of Final Appeal in Peter Po Fun Chan v Winnie C.W. Cheung, Chief Executive & Registrar of Hong Kong Institute of Certified Public Accountants (the “Society” or “Institute”) and Mark Fong, Chairman of the Registration and Practising Committee of the Society (2007) 10 HKCFAR 676 held:

“14. … Section 21K(3) of the High Court Ordinance, Cap.4 and Order 53 rule 3(1) of the Rules of the High Court. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

15. The purpose of the leave requirement would be better served by the adoption of the arguability test instead of the potential arguability test.  The granting of leave to apply for judicial review is a matter for the court’s discretion to be exercised judicially.  The test which should be applied is the arguability test.  Under this test, arguability must mean reasonable arguability.  A claim for relief which is not reasonably arguable could not be regarded as arguable.  A reasonably arguable case is one which enjoys realistic prospects of success.  Whilst the test adopted represents a higher threshold than the potential arguability test, claims which are reasonably arguable would be given leave to go forward under it.  It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

21.The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 held:  

“173.  …to meet the “minimum level of severity”, it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment.

184.… … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3.  The Court is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter [Director’s Decision] … …”

22.The Court of Appeal in TK v Michael Jenkins Esq. and Another [2014] 1 HKC 416 at paragraph 52:

“52. … the applicant is and was throughout legally represented. If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. After all, there was no request by the applicant or his legal representatives to the Director, or to the adjudicator to direct the Director, to obtain such information (or any other information) for the applicant, nor was there any suggestion of any difficulties in obtaining such information (or any other information) for the purposes of the screening process. In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”

23.At the beginning of the hearing, I had particularly referred Counsel to the above paragraph of the Court of Appeal as it sets out the burden of proof and the practical procedural steps to be enforced between the legal representatives and the Director or the Board to reflect the advance standards of fairness, which is a relevant issue in the discussion of Counsel’s submissions. Counsel had no dispute with the legal principles above.

24.What follow are Counsel’s submissions for this application.

(1)   The Board omitted to consider the impact of the Ifugao Laws and Article 333 of the Filippino Revised Penal Code on adultery in assessing the 1^st applicant’s risk under Articles 2 and 3 of the HKBOR. This issue will be discussed below.

(2)   The Board failed to apply a legal test in assessing the impact of the 1^st applicant’s medical conditions on her risks under Article 2 and 3 of the HKBOR.  This point can be disposed of briefly because Counsel admitted that the legal representative before the Board did not raise this issue before the Board, the Board has no obligation to make investigation into this issue on its own motion. The applicant is not allowed to raise it before the Court. See TK’s case.  BOR 3 risk has been defined by the Court of Final Appeal in Ubamaka Edward Wilson above.  It does not apply to withdrawal of medical treatment. In any event, there is no evidence to support deliberate withdrawal of medical treatment for the 1^st applicant.

(3)   The Board omitted to consider the 1^st applicant’s medical conditions when assessing the availability of internal relocation alternative. For the same reason as for (2) above, the applicant is not allowed to raise this issue before the Court.

(4)   The Board committed procedural impropriety by not directing medical examination of the 1^st applicant and not allowing /directing the 1^st applicant to submit further medical report on her HIV condition. Counsel admitted that there was a medical report on the 1^st applicant’s HIV condition. Legal representative of the 1^st applicant only told the Board that the 1^st applicant was happy to undergo examination for another expert report. There was no application before the Board for an adjournment for another medical examination for the 1^st applicant.  Counsel further agreed that the 1^st applicant was at liberty to have another medical examination herself without any direction from the Board.  However, her lawyer did not advise her to do so. Based upon the same legal principle in TK’s case, the 1^st applicant is not allowed to raise this issue at this stage.

(5)   The Board made errors of facts when assessing the 1^st applicant’s credibility, which was material to the Board’s rejection of her claim. Paragraph 12 above clearly shows that the Board did not rely on the 1^st applicant’s credibility of her evidence on the facts to determine her appeal.

(6)   The Board took into account irrelevant consideration, viz the source of the 1^st applicant’s HIV infection, when assessing the 1^st applicant’s credibility, which was material to the Board’s rejection of her claim.  For the same reason as for (5) above, this point has no merit.

(7)   The Board omitted to assess the 2^nd applicant ‘s risk under Articles 2 and 3 of the HKBOR. This issue is discussed below.

25.I shall now deal with the outstanding issues: 24(1) and (7).

26.It is correct to say that the Board in its Decision did not deal with the impact of the Ifugao Laws and Article 333 of the Filippino Revised Penal Code on adultery in assessing the 1^st applicant’s risk under Articles 2 and 3 of the HKBOR.  The question is whether this omission will give the 1^st applicant a realistic prospect of success in her intended judicial review of the Board’s Decision.

27.First of all, it is incorrect for the duty lawyer before the Board to say that the immigration officer did not deal with Ifugao Laws and Article 333 of the Filippino Revised Penal Code on the 1^st applicant. Quite the contrary, the immigration had considered these issues. The Board had confirmed the Director’s Decision. In the Director’s Decision, it is clear that the immigration officer in charge of this case had considered this issue. See paragraph 28 of the Director’s Decision.

28.In relation to the impact of Ifugo Laws, the immigration officer considered that the applicants had the option of internal relocation to avoid the Ifugo Laws. In relation to the impact of the Revised Penal Code on adultery committed by the 1^st applicant, the immigration found that there was no evidence to show that her husband had the intention of filing complaint against her adultery, which is a criterion for the operation of the Penal Code, viz. ‘the crimes of adultery and concubinage shall not be prosecuted except upon a complaint file by the offended spouse.’ The immigration officer went further to consider that according to Article 333 of the Penal Code, adultery shall be punished by imprisonment between six months and one day to six years, which would not amount to BOR 3 or BOR 2 risk.

29.In Counsel’s submissions, there is nothing to countermand the above findings of the immigration officer. This issue will not give the applicants any realistic prospect of success in their intended judicial review.

30.In relation to Ground 24(7), it is clear that the immigration officer had considered this issue in the Director’s Decision [A0145, para. 32]: ‘There is also objective COI (country of origin information) that the Philippine Government would provide reasonable protection and assistance to women and children in need.’ It is clear that the Director and the Board had separately considered the cases of the 1^st and 2^nd applicants. Where the Director’s Decision has already covered this issue to such extent and there being no argument against the Director’s findings, the Board can simply affirm the Director’s Decision without further elaboration. Even at this stage, Counsel for the applicants has not put forward any argument against the Director’s finding on this issue.

31.Counsel has rightly pointed out that the 2^nd applicant has attained the age of 18 and the principles regarding children will not be applicable to him again if his non-refoulement claim is referred back to the Board. However, he argued that the 2^nd applicant is entitled to a fresh chance of being independently assessed. The question is: for what purpose? This issue has no practical purpose to serve. The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held:

“It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed) at §18.18.1)….” [67]

32.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

33.The applicants fail, independently or jointly, to show that they have any reasonable prospect of success in their intended application for judicial review.

CONCLUSION

34.Leave is granted to the applicants to amend their Form 86.

35.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their application.

36.The costs of this application be in the cause, to be taxed in accordance with the Legal Aid Regulations.

Dated the 24^th day of December 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