Espana Rodalyn Somera and Another v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 241/2019

[2022] HKCFI 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 241 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 oral submissions by the Applicants in open court;

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

1.  Extension of time for the Applicants to apply for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, who was born in Hong Kong on 7 March 2011 and is about 12 years old. This is their joint application. The 2^nd applicant’s application relies upon the facts of the 1^st applicant.

2.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 2 November 2018 (the “Board’s Decision”).

3.The applicants attended a hearing. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), a hearing was fixed for their joint application.

4.On 19 May 2022, 4 days before the hearing, the 1^st applicant wrote to the Court for an adjournment because she had applied for legal aid. At the hearing, she told the Court that she had applied for legal aid shortly after she had received the court’s letter advising her to seek legal assistance because her son is a minor. The application was made in January 2022 and was rejected. She had then made a second application.

5.The Court refused to adjourn the matter because the Court had advised her to seek legal assistance in January 2022. This case had therefore been delayed 4 months for her arrangement for legal assistance. She had applied and been rejected by the Director of Legal Aid. Instead of appealing the Director’s decision, she re-applied again. Even if she appealed against the Director’s decision, the matter should not be adjourned. The application has no merit. There is no reason for the application to be delayed further. The proceedings therefore proceeded. At the hearing, the 1^st applicant was present.

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

The applicants

7.The applicants are nationals of the Philippines. The 1^st applicant last entered Hong Kong as a foreign domestic helper and was permitted to stay until 23 September 2009. However, she did not depart and had overstayed since 24 September 2009. On 7 March 2011, she gave birth to the 2^nd applicant. On 13 August 2015, she approached the Immigration Department with the aim to register the birth of the 2^nd applicant. She was arrested for overstaying and for failing to register birth of a baby within 42 days of his birth. On 19 August 2015, she lodged a non-refoulement claim for herself and on behalf of her son. Their claims are made on the basis that, if refouled, they would be harmed or killed by the 1^st applicant’s husband, Orly O. Espana (“Orly”).

8.According to the 1^st applicant, after her employment contract ended in September 2009, she decided to stay in Hong Kong to avoid the outstanding debts in the Philippines. In June 2010, she met her boyfriend in Hong Kong and later was pregnant with the 2^nd applicant. After she gave birth to the 2^nd applicant in Hong Kong, she received a telephone call from Orly threatening to kill her because of her affair. Despite she changed her phone number and the parties ceased to talk on the phone, Orly still sent her threatening messages on Facebook. In 2012, she came across Orly’s cousin in Central under the belief that he was sent by Orly to locate her. Thereafter in 2016, she received a message from her in-laws chasing for outstanding debts. The applicant claimed that, although her family lived close to Orly’s place, he did not harass them except complained to her family in one occasion. She also feared that the 2^nd applicant was still young and would not be able to protect himself. Out of fear, she stayed in Hong Kong for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 7 April 2017 by the Director (the “Director’s Decision”) and paragraph 21 of the Board’s Decision.

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

10.By way of the Director’s Decision, the Director dismissed their claims. The Director did not assess the 2^nd applicant’s claim separately. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to them [15]; and (iii) internal relocation was a viable alternative.

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board. On 4 July 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave evidence for herself and on the 2^nd applicant’s behalf.

12.Having considered all the evidence, the Board made the following findings. First, Orly did not possess a real intention to kill the 1^st applicant. The alleged death threat was lashed out because of his frustration. Secondly, it was only a speculation that Orly would inflict any harms on her. Thirdly, her allegation that Orly sent his cousin to locate her in Hong Kong was based on hearsay information [25]. Further, the Board found that the 1^st applicant was never hurt and that she was under the obligation to repay her loan [26]. In addition, the Board considered that state protection and internal relocation were both viable alternatives [30]-[32]; [47]-[49]. In passing, the Board noted that the 2^nd applicant was only an infant born in Hong Kong and had never been to the Philippines [43].

13.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

14.The 1^st applicant filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

15.The 1^st applicant filed her affidavit dated 25 January 2019 in support of her application. She did not set out any specific ground, but only asked for re-consideration of her case.

DISCUSSION

16.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 §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant simply said she wants a review of her case.

18.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.”

19.It is clear that the Director and the Board had both treated the applicants’ claim as a composite claim. The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. V Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 held that the applicants’ claim should be separately considered as there might be child specific not brought to the Board’s attention. This issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application. In Re: Begum Mst Sinthia & Zaheer Jannatul Ferdaus [2021] HKCA 207, the Court of Appeal held that under the following circumstances, the minor’s case can be deal with, treating the requirement under Order 80 of the RHC as procedural irregularity:

(1)  there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf [29];

(2)  the court does not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board [31]; and

(3)  the 2^nd applicant’s intended judicial review has no arguable merit [32].

20.All the above factors apply to this case. The applicants were legally represented at the screening stage before the immigration officer. The duty lawyer should have put forth to the immigration officer and 2^nd applicant’s specifics to the immigration officer. There is no child-specific claim in the non-refoulement claim form. The applicant did not advance any additional facts in Form 86 or supporting affirmation. The Board had heard oral evidence from the 1^st applicant. The Board had, in paragraph 31 of the Board’s Decision, considered the general aspect of the country of origin information, which stated that the government improved in providing gender-sensitive training to deal with victims of domestic violence and combating the crimes.

21.In the Director’s Decision, there was no mention of any child specifics for the 2^nd applicant. The Court fails to see that there is any child specific issue that had not been brought to the attention of the Board.

22.There is no valid reason from the applicants to challenge the Board’s Decision. The lack of legal representation of the 2^nd applicant before the Board and this Court is treated as irregularity under Order 2, rule 1 of the RHC only, which will not render the proceedings nullity.

23.The applicants fail to show that they have any reasonable prospect of success in their intended appeal.

CONCLUSION

24.In the circumstances, I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

Dated the 29^th day of June 2022

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