Re Lavado Mary Jane Mabao and Another

CACV 295/2021

[2022] HKCA 560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 295 OF 2021

(ON APPEAL FROM HCAL NO 2697 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 25 May 2021[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 20 February 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 21 February 2017 rejecting the applicants’ non-refoulement claims.

Background

2.Both applicants are Philippine nationals.  The 1^st Applicant is now aged 38.  The 2^nd Applicant is the 1^st Applicant’s son, born in Hong Kong on 29 November 2014.  The 1^st Applicant last arrived in Hong Kong on 30 March 2012 for employment as a domestic helper.  She met the 2^nd Applicant’s father, Mehmood Sajid (“Sajid”), apparently a Pakistani national, at a party in Hong Kong in 2013.  They commenced a relationship and got married, first in an Islamic religious ceremony in 2014, and later legally in 2015. 

3.The 1^st Applicant’s employment contract came to an end on 29 March 2014.  She was permitted to remain as a visitor until 15 April 2014, but she did not depart, and overstayed.  She surrendered herself to the Immigration Department on 27 June 2014, and lodged her non-refoulement claim on 23 July 2014.  After the 2^nd Applicant was born, the 1^st Applicant lodged a non-refoulement claim on his behalf on 7 May 2015.  They submitted non-refoulement claim forms dated 3 February 2017.  They had legal representation in making their claims to the Director.

4.The Applicants’ claims were based on the fear that, if they returned to the Philippines, they would be harmed or even killed by the 1^st Applicant’s family, because they opposed her pregnancy with and giving birth to the 2^nd Applicant and her relationship with Sajid, a Muslim.  The factual background of their claims was summarized at [5] to [6] of the Director’s decision and [27] to [30] of the Board’s decision.

5.By notice of decision dated 21 February 2017, the Director assessed the Applicants’ claims on all applicable grounds and decided against them.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.The Applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 29 January 2018, during which the 1^st Applicant gave oral testimony and also spoke on the 2^nd Applicant’s behalf.  The applicants were assisted by a Tagalog language interpreter, but were not legally represented before the Board.

7.In the end, the Board considered that the 1^st Applicant was not a witness of truth and had fabricated her claims in relation to her disclosure of the relationship with Sajid to her family and their reaction to that disclosure.  In particular, the Board noted that the information she had given in 2014 for her claim only stated her family threatened her because of her pregnancy, but did not mention her relationship with a Muslim man (in contrast to her later claims).  When asked about the inconsistency, she had given inconsistent information about her last communication with her family members as well as other explanations that the Board found incredible.

8.As a result of the Board’s adverse finding on the 1^st Applicant’s credibility, the Board rejected both applicants’ claims and found that there was no real risk of harm to them in the event of refoulement.  The Board did not accept the circumstances in which the 1^st Applicant claims to have told her father and brothers about her relationship with Sajid, or that they reacted as adversely as she claims. The Board further considered that even if the 1^st Applicant’s factual account was credible, the 1^st Applicant’s own evidence suggested that her father or brothers simply wished to have nothing to do with her and her son rather than to harm them.  The Board did not think that the 1^st Applicant’s father and brothers would travel a long way from Samar, where they were based, to seek them out in Manila, which was the place the 1^st Applicant had lived in for 12 years before coming to Hong Kong and considered the home area to which the Applicants would return.  Accordingly, in its decision dated 20 February 2018, the Board dismissed the Applicants’ appeal in relation to all applicable grounds.

Decision of the court below

9.Long after the prescribed period of 3 months under Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A), on 28 November 2018, the Applicants sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In her supporting affirmation of 28 May 2018, the 1^st Applicant simply stated that the Immigration Department disregarded her dangerous situation.

10.Following consideration of the documents only, on 25 May 2021 the Judge refused to extend time for the Applicants to apply for leave for judicial review.  His reasons were set out at [15] – [20] of the Form CALL-1 as follows:

“ 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 [own] 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.”

Appeal to this Court

11.On 4 June 2021, the 1^st Applicant filed the Applicants’ Notice of Appeal against the Judge’s decision, in which she stated that her life would be in danger if she were to return to her country.  On the same day, the 1^st Applicant gave consent in writing on behalf of herself and her son for their appeal to be disposed of on paper without an oral hearing.

12.The 1^st Applicant lodged written submissions for these appeals on 5 November 2021.  Regarding the delay in seeking judicial review, she said as a foreigner, she had no idea of what to do.  She referred to the “drug war” killings and other extrajudicial killings and “enforced disappearances” undertaken by security forces in the Philippines.  She asserted there is a dysfunctional criminal justice system there notable for poor cooperation between police and investigators, few prosecutions and lengthy procedural delays, as well as widespread official corruption and abuse of power.  She submitted that the possibility of relocation is a myth as she will need to live like a fugitive to avoid being caught.  She referred to her case as originally caused by “political problems”.

Discussion

The 1^st Applicant’s appeal

13.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.In the present case, the Board rejected the Applicants’ claim for non-refoulement protection, mainly due to its adverse findings on the 1^st Applicant’s credibility.  As such, the Board concluded that there was no real risk of harm in the event of refoulement.  The assessment of credibility and investigation of facts are matters for the Board, from which there is no legal avenue for appeal. For the purposes of the intended judicial review application, the 1^st Applicant has not been able to point to any public law wrong vitiating the Board’s decision.

15.Even allowing for the fact that the 1^st Applicant had been coughing for several days and had felt dizzy (as she told the Board), we do not find any unfairness in the proceeding.  The Board was alert to this issue and had asked several times in the hearing as to the 1^st Applicant’s health and whether she needed any adjournment.  Each time the 1^st Applicant indicated that she was well enough to proceed with the hearing.  There was no complaint raised by her in this regard for the intended judicial review, nor any suggestion that her illness at the time adversely affected her memory, the quality of her testimony and her ability to properly respond to the Board’s questions.  The evidence she put forward for the intended judicial review and the submissions she made to this Court fail to engage with the reasoning of the Board in rejecting her claims.

16.The 1^st Applicant has also failed to point to any error in the Judge’s decision in refusing to grant leave out of time for her to apply for judicial review.  Her submissions concerning “drug war” killings, other extrajudicial killings, “enforced disappearances” and “political problems” do not appear to be relevant to her claim.  Her complaint that the possibility of relocation was a myth is also misconceived as the Board did not reject her claim based on the possibility of internal relocation.  Accordingly, the 1^st Applicant’s appeal must be dismissed.

The 2^nd Applicant’s appeal

17.As observed by the Judge, the proper approach to children’s non-refoulement claims has been considered by this Court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & others [2021] HKCA 53.  We shall not repeat everything that has been said in those cases.  Suffice it for present purpose to note that, first, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.[6]

18.Secondly, when dealing with an application by a non-legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non-refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.[7]

19.The 2^nd Applicant was born in November 2014 and was plainly so young that he could not make decisions on how his claim should be presented before the Board or to make meaningful submissions on his own behalf.[8]

20.The Board did note that the two Applicants’ claims were separate and had to be considered separately on their own merits.[9] However, the Board also noted, correctly as a matter of fact, that the 2^nd Applicant’s claims were based on those of his mother, and that there was no separate substantive claim of his own that was advanced.[10]  As such, given that the 1^st Applicant’s appeal was dismissed, the Board also dismissed the 2^nd Applicant’s appeal.

21.As set out above, although the Judge took the view that the Board had not considered the 2^nd Applicant’s case separately, there was no relevant child-specific risk to consider.  The Judge therefore treated the lack of legal representation of the 2^nd Applicant before the Board and the Court as a mere irregularity that did not vitiate the entire proceedings.

22.In the 2^nd Applicant’s non-refoulement claim form dated 3 February 2017 completed with legal assistance, reliance was placed on the 1^st Applicant’s claim.  No additional risk for the 2^nd Applicant was advanced.  The Judge, correctly directing himself based on Fabio Arlyn Timogan and Jasvir Singh and having considered the matter, did not find that there was any child-specific risk which had not been advanced on behalf of the 2^nd Applicant due to the lack of legal representation before the Board.  We have ourselves considered the 2^nd Applicant’s position carefully.  His father and mother are both Muslims; there is therefore no question of his being of mixed-religion.  His parents were married religiously in 2014 and legally in 2015, and so there is no question of his being an illegitimate child.  The 1^st Applicant did not suggest that her son would face any risk of harm other than that based on her claim about the threatened harm from her father and brothers.  There is no reason to think that simply being a mixed-race Muslim child will in itself bring risk of harm of the relevant kind on the 2^nd Applicant in Manila.

23.Accordingly, there being no conceivable reason to think that the 2^nd Applicant could raise any reasonably arguable ground for judicial review of the Board’s decision, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss the appeal of the 2^nd Applicant, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court, in that the 2^nd Applicant has not acted by a next friend acting by a solicitor, as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

24.We should mention that there is no information regarding Sajid’s residency or immigration status in Hong Kong.  If the 2^nd Applicant has any residency right through his father Sajid, then obviously that would have an impact on whether he may be deported, but this is not directly relevant to his non-refoulement claim or the present appeal.

25.For the above reasons, the Applicants’ appeals are dismissed.

The 1^st and 2^nd Applicants, unrepresented, acting in person