Paglingayen Emmanuel Justin Ringor, A Minor By His Mother and Next Friend Paglingayen Rosalyn Ringor v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1158/2018 on BabelCite. This High Court CFI judgment was delivered on 27 July 2022.
1. The Applicant is a 17-year-old national of the Philippines who arrived in Hong Kong on 16 April 2016 with his grandmother with permission to remain as visitors up to 30 April 2016 when he did not depart and instead overstayed in Hong Kong, and later accompanied by his mother, who was then an applicant for non-refoulement claimant based on her own case, surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be h
Cites 8 cases
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HCAL 1158/2018 [2022] HKCFI 2298 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1158 of 2018
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review refused. Observations for the Applicant: 1.The Applicant is a 17-year-old national of the Philippines who arrived in Hong Kong on 16 April 2016 with his grandmother with permission to remain as visitors up to 30 April 2016 when he did not depart and instead overstayed in Hong Kong, and later accompanied by his mother, who was then an applicant for non-refoulement claimant based on her own case, surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his abusive father. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Sevilla Sur, San Fernando City, La Union, the Philippines where his father worked as a cook and his mother a housewife until 2008 when she started working in Hong Kong as a foreign domestic helper, during which the Applicant continued to live with his father with the assistance of his maternal grandmother. 3.In 2012 his mother formed a relationship with a Pakistani man while working in Hong Kong, and out of their relationship his mother became pregnant with their child in early 2015, for which his father became furious and made threats against his mother, and so when his mother’s employment was terminated in April 2015, she did not return to the Philippines and instead overstayed in Hong Kong and raised a non-refoulement claim with the Immigration Department for herself and her child born out of her relationship with the Pakistani man on the basis that they would be harmed or killed by her husband over her said extra-marital affair if refouled to the Philippines. 4.As a result of his mother’s affair, the Applicant’s father started to indulge in alcohol at home, and when drunk he would become abusive towards the Applicant, and had on several occasions beat him with a belt, and after his mother in Hong Kong learnt about it, she arranged for him to come to Hong Kong in April 2016 and raised a non-refoulement claim for protection on his behalf on the basis that his father had been abusive towards him, and for which she completed a Non-refoulement Claim Form (“NCF”) on 28 October 2016 for him and attended screening interview with him before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By then the Applicant’s mother’s own non-refoulement claim for herself and her child born out of her relationship with the Pakistani man had been rejected by the Director of Immigration (“Director”) on 12 May 2016 upon finding that the level of risk of harm from his father upon his mother’s return to the Philippines was low, and that both state protection and reasonable internal relocation are available for her to move safely with her child back to the Philippines without any risk of being located by his father. 6.As for the Applicant’s own claim, the Director by a Notice of Decision dated 8 December 2016 also rejected it on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”). 7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his father upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from his father, that it was at worst a private domestic abuse without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and both governmental and non-governmental organizations in the Philippines to protect children from parental abuses, and that reasonable internal relocation alternatives are also available in the Philippines with a large population of 102 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant to move with his mother as an able-bodied adult with working experience to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for his father to locate him. 8.On 22 December 2016 the Applicant through his mother lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he and his mother attended an oral hearing on 10 April 2018 before the Board during which both of them gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director. 9.In its decision the Board found no reliable evidence of any threats ever been made by the Applicant’s father against him, that from the Applicant’s own evidence that it is unlikely that any domestic violence of a serious nature had been inflicted upon him by his father in the Philippines other the fact that he might have been disciplined and punished from time to time and might also have been hit in his bottom by slippers but not by a belt to attack him, that his mother’s claim of him being hit by a belt was told by his grandmother and might have been grossly exaggerated, that the Applicant had always been taken care of by his father after his mother had come to work in Hong Kong since when he was only 4 years old that it is clear that he has a much stronger bond with his father and whom he readily admitted that he is not afraid of that the Board does not consider that he will likely face any imminent threat from his father upon his return to the Philippines, nor does it believe that his father is likely to pose any threats to him, and that in any event based on the latest COI that assistances will be available from the government agencies of the Philippines as well as PNP and NGO to both the Applicant and his mother from domestic violence upon their return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds. 10.On 21 June 2018 the Applicant by his mother filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his mother’s supporting affirmation of the same date she just attached a copy of the decision together with other documents from his hearing bundle for his appeal before the Board without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 11.Before proceeding to consider the merits of the Applicant’s intended application, it would be relevant to first note that his mother’s own non-refoulement claim for herself and her child has since also been fully and conclusively determined as follows:
12.As for the Applicant’s intended application, as noted above, no proper or viable ground has been put forth by his mother for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by and for the Applicant, I do not find any reasonably arguable basis for his intended challenge. 13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 14.In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any real threats or ill-treatments had ever been inflicted on him by his father or any real risk of such harm on him upon his return to the Philippines for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 30 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 15.The fact is that it has been established by the Director in his decision that any risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate with his mother to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 16.I am of course mindful of the fact that the Applicant is still a minor at the age of 17 being born on 9 October 2004, and was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, but unlike the situation in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 where the claim of the minor applicant was based on her parents’ claim and hence should be separately considered to see whether there were matters that might support potential minor-specific non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation, in the present case of the Applicant, it is clear that his claim is premised entirely on his own minor-specific bases of which both the Director and the Board had properly and sufficiently considered and assessed in their determination of his such claim. 17.Having proceeded to consider those decisions of the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. Nor do I find any other underlying matter which may support any minor-specific non-refoulement grounds which have not been advanced to the Director or the Board. As such I shall treat the absence of legal representation for the Applicant in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review. 18.In the premises, and for these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application. Dated the 27th day of July 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
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Cases cited in this judgment