Singh Amarveer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 245/2021

[2022] HKCA 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2021

(ON APPEAL FROM HCAL 2601 OF 2018)

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BETWEEN

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Before:  Hon Cheung and Chow JJA in Court

Date of Written Submissions:  27 September 2021

Date of Judgment:  4 May 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is an appeal against the order made by Deputy High Court Judge K W Lung (“the Judge”)  on 3 May 2021 refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  dated 23 August 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 19 October 2017.

2.On 13 May 2021, the Applicants’ mother (“the Mother”), their next friend in these proceedings, consented to the present appeal being disposed of on paper by the court without an oral hearing.

BACKGROUND

3.The Applicants are minors and Philippine nationals.  The Mother last arrived in Hong Kong on 29 August 2014 for employment as a foreign domestic helper.  She was permitted to remain in Hong Kong until 29 August 2016 or two weeks after termination of her employment contract, whichever was earlier.  He employment was prematurely terminated on 5 September 2014, and she had overstayed in Hong Kong since 20 September 2014.  On 24 November 2014, she surrendered to the Immigration Department.  On 4 December 2015, she lodged a non-refoulement claim, alleging that if she was refouled back to the Philippines, she would be harmed or killed by her ex-boyfriend (Maluya)  because of her breakup with him.  While in Hong Kong, she had another boyfriend, and gave birth to the Applicants in August 2015 and November 2016 respectively.

4.The Mother’s non-refoulement claim was rejected by the Director on 8 June 2016 and 28 June 2017, and by the Board on 23 March 2018. The Board considered her evidence suspicious and unreliable, and found that the main reason for her leaving the Philippines and coming to Hong Kong was not to avoid Maluya, but to earn more money.  Her application for leave to apply for judicial review (including an extension of time to apply for leave)  was dismissed by the Judge on 29 June 2020 in HCAL 1894/2018 ([2020] HKCFI 1395). Her renewed application for leave to apply for judicial review was dismissed by the Court of Appeal on 10 June 2021 in CACV 552/2020 ([2021] HKCA 813), and her application for leave to appeal the Court of Appeal’s decision was dismissed on 21 July 2021 ([2021] HKCA 1031).

5.In the meantime, the Mother made non-refoulement claims on behalf of the 1^st and 2^nd Applicants on 8 September 2016 and 12 April 2017 respectively based on the same factual basis as her own non-refoulement claim.

6.By a Notice of Decision dated 19 October 2017, the Director dismissed the Applicants’ non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. Their appeal against the Director’s decision was dismissed by the Board on 23 August 2018 (“the Board’s Decision”).

THE JUDGE’S DECISION

7.On 19 November 2018, the Mother on behalf of the Applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  No ground in support of the application was given in the Form 86.  In her affirmation in support of the application, she merely stated that she was not satisfied with the Board’s Decision without a hearing and she wanted her children “to follow the Father”.

8.On 3 May 2021, the Judge refused to grant leave to the Applicants to apply for judicial review.  At §§17-20 of Form CALL-1, the Judge stated as follows:

“17. There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to the case.

18. The grounds in support of this application are do not assist their application.

19. The applicants are minor in this case. They were represented by their mother. In Re: Jasvir Singh & Others [2021] HKCA 53 , 14 January 2021, the Court of Appeal held that if the minor issues had been separately and properly dealt with by the Board, the court may dismiss the application, treating the non-compliance with O.80, r.2 of the RHC as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 , discussed in [57] of Re: Fabio Arlyn Timogan & Others v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Another [2020] HKCA 971, 27 November 2020.

20. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.”

THIS APPEAL

9.In the Notice of Appeal dated 13 May 2021 filed by the Mother on behalf the Applicants, the Mother sought to set aside the Judge’s order dated 3 May 2021, stating that she “would like to reject and review the decision made by the Torture Claims Appeal Board on [her] children’s non-refoulement case” because the Board “disregarded [their] dangerous situation”.

10.On 11 August 2021, the Mother lodged a Supplemental Notice of Appeal, in which she stated as follows: “I would like to appeal against the decision made by the court.  And the TCAB has misinterpreted my claim about my risk.  I would have problems should I be return[ed] to Philippines because Maluya could kill me.  I did not say Maluya did not kill me (point 6 of the judgment).  This misinterpretation of my idea constitutes to the flow of judgment”.

11.In the Mother’s 2-page written submissions dated 27 September 2021 on behalf of the Applicants, the Mother requested the court to grant her legal aid to facilitate the appeal proceedings.  In addition, she stated that the human rights situation in the Philippines was one of the worst in the world, and the Board had failed to consider the danger that her children might face in the Philippines.

DISCUSSION

12.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  The court’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.It is also well established that in applications for judicial review in non-refoulement cases, the assessment of evidence and Country of Origin  materials and risk of harm, state protection and viability of internal relocation are matters 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 or Director: Re Kartini [2019] HKCA 1022.

14.The Mother has not pointed to any specific errors in the Judge’s decision, or raised any viable grounds of appeal against the Judge’s decision in the Notice of Appeal, Supplemental Notice of Appeal, or written submissions.  The mere repetition by the Mother of the basis of the Applicants’ non-refoulement claims is not a valid ground of appeal.

15.In so far as the Mother is seeking to challenge the Board’s finding, at paragraph 45 of the Board’s decision dated 23 March 2018, that she had agreed that Maluya might have no intention of killing her any longer, that was a finding of fact made by the Board in relation to her own appeal.  There is no proper basis for this Court to entertain such dispute of fact in the present appeal which concerns the Applicants’ application for leave to apply for judicial review of a different decision of the Board.

16.The Applicants are minors, and their claims are, in principle, separate from that of the Mother.  The well-established approach of the court when considering a minor’s non-refoulement claim is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, and does not have to be repeated here.  In the present case, as pointed out by the Judge, the Mother confirmed that the Applicants would rely on the same set of facts that she had previously relied upon in support of her own non-refoulment claim.  As noted above, the Mother’s own non-refoulment claim has already been conclusively rejected by the Judge and Court of Appeal.  There is nothing to indicate that there exists any matter which may support potential minor-specific non-refoulement bases which were not, or were not properly, advanced to the Board, whether because of the absence of legal representation before the Board or otherwise.  There is also nothing to suggest that the Board failed to observe the high standard of fairness required in the consideration of the Applicants’ claims.  The Judge was correct to come to the conclusion that the 1^st and 2^nd Applicants’ intended application for judicial review was not reasonably arguable and had no reasonable prospect of success.

17.In all, the Applicants’ appeal has no merits, and is dismissed.

18.For the avoidance of doubt, the absence of legal representation for the Applicants in this appeal is treated as an irregularity without rendering their appeal a nullity.

The Applicants, acting through their next friend