Vocal Lorelie Baldosano and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 708/2019

[2022] HKCFI 2928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 of 2019

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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 the Applicants being absent in open court;

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

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

2.  The joint 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 10 June 2015 and is about 7 years old. This is their joint application. The 2^nd applicant’s application relies upon the facts of the 1^st applicant. The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 26 May 2017 (the “Board’s Decision”). Their application filed on 13 March 2019 is late.[1] This issue will be dealt with below.

2.The applicants include a minor, therefore, a date was fixed for the applicants. However, the applicants were absent without prior notice to Court. Their joint application will therefore be considered on paper.

3.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.

4.The 2^nd applicant is a minor. The 1^st applicant is his guardian ad litem and she is not legally represented. This issue will also be dealt with below.

The applicants

5.The applicants are nationals of the Philippines.  1^st applicant worked in Hong Kong as a foreign domestic helper and her last employment contract was prematurely terminated on 6 February 2013.  She was required to leave on or before 20 February 2013.  She did not depart and had overstayed since 21 February 2013.  On 3 January 2014, she was arrested by the police for overstaying.  On 13 January 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Jose Angelo Vocal.

6.On 10 June 2015, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  She also lodged a non-refoulement claim on his behalf.  The 2^nd applicant’s claim was made on the same factual basis as that of the 1^st applicant.

7.According to the 1^st applicant, she married Jose in 1994. From 1994 to 1998, the couple had verbal disputes for monetary problems and Jose’s drug problem.  During the arguments, Jose would damage the valuable items at home and, on one occasion, locked the 1^st applicant for a whole day.  The verbal disputes continued from 1999 to 2008.  In August 2010, Jose once got drunk and hit the 1^st applicant’s father.  Later, in November 2011, when the 1^st applicant returned home after her overseas employment and inquired with Jose about why he sold the valuable items at home, Jose attempted to assault her with an axe.  Thereafter, the couple signed a separation agreement.  Afterwards, from 2011 to 2013, Jose continued to send the threatening phone messages to the 1^st applicant.  Out of fear, the 1^st applicant decided to stay in Hong Kong for protection.

8.Insofar as the 2^nd applicant’s claim was concerned, the 1^st applicant added that he would also be harmed or killed by Jose.

9.Details of their claims are set out at paragraph 6 of the Notice of Decision dated 7 January 2015 by the Director for the 1^st applicant (“Director’s First Decision for A1”) and paragraph 6 of the Notice of Decision dated 7 April 2016 by the Director for the 2^nd applicant (“Director’s First Decision for A2”).

The Director’s Decisions

10.The Director considered their claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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”).

11.The Director assessed the applicants’ claims separately.

12.Insofar as the 1^st applicant’s claim was concerned, by way of the Director’s First Decision for A1, the Director dismissed her claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) state protection would be available to her [13]; and (iii) internal relocation was a viable alternative [14].  In the Notice of Further Decision dated 7 March 2017 for the 1^st applicant, the Director also dismissed her claim on BOR 2 risk (the “Director’s Second Decision for A1”).

13.For simplicity, the Director’s First Decision for A1 and the Director’s Second Decision for A1 will be referred to collectively as “the Director’s Decisions for A1”.

14.As to the 2^nd applicant, by way of the Director’s First Decision for A2, the Director also dismissed his claim on Torture risk, BOR3 risk and Persecution risk.  In elaboration, the Director found that (i) the 2^nd applicant was born in Hong Kong and he had not been to the Philippines before and there was no evidence that he had ever received any ill-treatments from Jose [15]; (ii) the past events suggested that Jose had no real intention to harm or even kill the 1^st applicant or her children, not to mention the 2^nd applicant who Jose had never seen before [16]; (iii) state protection would be available to him [17]-[20]; and (iv) internal relocation with the 1^st applicant was a viable option [21]-[27].  In the Notice of Further Decision dated 28 March 2017 for the 2^nd applicant, the Director also dismissed his claim on BOR 2 risk (the “Director’s Second Decision for A2”).

15.For simplicity, the Director’s First Decision for A2 and the Director’s Second Decision for A2 will be referred to collectively as “the Director’s Decisions for A2”.

The Board’s Decision

16.The applicants appealed their respective Director’s Decisions to the Board.  On 27 April 2017, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave evidence for herself and on behalf of the 2^nd applicant.

17.The Board noticed that, on the 1^st applicant’s own evidence, there was only one incident which Jose attempted, but failed, to assault the 1^st applicant with an axe.  She sustained bruises in the scuffles.  On the previous occasions, the parties only quarreled and the 1^st applicant did not sustain injuries [23].  After Jose sent her the threatening messages, 1^st applicant ceased contact with him in around 2012 or 2013 when she changed her phone number [24].  Meanwhile, on the evidence given by the 1^st applicant, the Board noted that the 1^st applicant had not returned since 2011 and the text messages from Jose stopped in 2012 or 2013.  The applicants could relocate to areas that were far from Jose.  As a result, the Board concluded that, on her own evidence, she and her son would not face any risk of harm, if refouled [25].

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

Application for leave to apply for judicial review

19.The 1^st applicant filed Form 86 dated 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

20.The 1^st applicant filed her affidavit in support of their joint application. She said she rejects the Board’s Decision as they disregarded her dangerous situation.

DISCUSSION

21.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).

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

23.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.

24.It is clear that the Board had 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.

25.The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 1121, Hon. G Lam and Chow JJA, 3 August 2022, following the practice in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, held:

“22. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, found the 1st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24. In the premises, we also find that the 2nd Applicant’s intended judicial review is not reasonably arguable.”

26.The present case is similar to the above cases as the Board found that the 1^st applicant’s alleged fear of harm from Jose does not exist and relocation is a viable alternative for the applicants. Devoid of the facts of the 1^st applicant, there is no substance in the 2^nd applicant’s application and I fail to see any child specific, which should have been brought to the Board’s consideration, had not been done so. I therefore find that there is no realistic prospect of success in the applicants’ intended judicial review of the Board’s Decision.

CONCLUSION

27.In the circumstances, I treat non-legal representation of the 2^nd applicant as procedural irregularity under Order 2 of the RHC. I therefore refuse to extend time for the applicants to apply for leave to apply for judicial review. Accordingly, I dismiss their joint application.

Dated the 22^nd day of September 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