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

CACV 270/2022

[2023] HKCA 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2022

(ON APPEAL FROM HCAL NO 241 OF 2019)

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BETWEEN

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J U D G M E N T

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

1.This is an appeal by the applicants against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 29 June 2022, by which the Deputy Judge refused to grant extension of time and dismissed their application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 1981).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 2 November 2018 (“the Board’s Decision”), dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 7 April 2017 rejecting the applicants’ non-refoulement claim.

3.We heard the appeal on 5 December 2022.  The Board adopted a neutral stance in the proceedings on 1 August 2022 and was absent from the hearing.  Both applicants acted in person and the Director of Immigration was represented by the Department of Justice.  By consent of the parties, we made the following orders in relation to the 2^nd applicant during the hearing:

(1)  The 2^nd applicant’s appeal be allowed;

(2)  The 2^nd applicant be granted leave to apply for judicial review and his substantive application for judicial review be allowed;

(3)  There be an order for certiorari to bring up and quash the Board’s Decision in respect of the 2^nd applicant; and

(4)  There be an order of mandamus to direct the Board to reconsider the non-refoulement claim of the 2^nd applicant with legal representation to be provided for him at the hearing before the Board.

4.As to the 1^st applicant’s appeal, after the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

5.The applicants are nationals of the Philippines.  The 1^st applicant is the mother of the 2^nd applicant, who is her son.  The 1^st applicant last entered Hong Kong as a domestic helper and was permitted to stay in Hong Kong until 23 September 2009.  She did not depart and overstayed since 24 September 2009.  In around June 2010, the applicant met her boyfriend who worked as a driver in Hong Kong and they started a relationship and she was later pregnant with a son, the 2^nd applicant.  On 13 August 2015, the 1^st applicant approached the Immigration Department for birth registration of the 2^nd applicant.  She was then arrested for breach of condition of stay by overstaying and failure to register birth of the 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, on the basis that if refouled, they would be harmed or killed by the 1^st applicant’s husband and his family because of her extra marital relationship and the unpaid loan.  Factual details of the applicants’ claim were summarised by the Deputy Judge at [7] - [8] of the Leave Decision.

6.By a Notice of Decision dated 7 April 2017 (“the Director’s Decision”), the Director rejected the applicants’ non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

7.The applicants then appealed against the Director’s Decision to the Board.  They attended the hearing in person on 4 July 2018.  Having assessed the evidence, the Board considered that the 1^st applicant had a good relationship with her husband prior to discovering that she had the 2^nd applicant and that the verbal threats were said out of frustration rather than with any intention to kill her.  The Board also noted that it was only hearsay that her husband’s cousin, Allan, was sent to Hong Kong to locate her and that she did not have any contact with Allan when she met Allan in Central.  The Board further noted that the 1^st applicant had never been hurt, and that it was her obligation to repay her loan.  After considering the Country of Origin information (“COI”), the Board also found that state protection and internal relocation would be available to the applicants upon their return to the Philippines.  Accordingly, the Board found that the applicants failed to substantiate their case on all applicable grounds and dismissed their appeal.

The Leave Decision

8.On 25 January 2019, the applicants applied for leave to apply for judicial review against the Board’s Decision.  In their Form 86 and supporting affidavit, the applicants did not state any ground of review and only requested that their case be reconsidered.  The Deputy Judge heard the matter on 23 May 2022 and a Tagalog interpreter was present to provide language assistance.

9.By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicants and dismissed their application for leave to apply for judicial review.[5]  His reasons were set out at [16] - [24] of the Leave Decision:

“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.”

The Appeal

10.On 12 July 2022, the applicants filed a Notice of Appeal in support of their appeal against the Leave Decision. In their Notice of Appeal, they relied on the following grounds of appeal:

“1)  The decision is substantially unfair.

2)  I am preparing this application without legal representation.  I also reserve the right to amend these grounds in due course.”

11.Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicants lodged their written submissions on 4 November 2022 and 14 November 2022.  In those submissions, the applicants, with the assistance of a non-governmental organisation and a Tagalog interpreter, advanced the following grounds:

(1)  The Director and the Board failed to assess the applicants’ fear properly and failed to give due regard to the fact that the applicants would face real risk upon refoulement; their life would be in danger and that they would be placed under severe mental distress;

(2)  The Deputy Judge erred in law by concluding that the lack of legal representation for the 2^nd applicant before the Board was a procedural irregularity.  The facts before the Board suggested that the 2^nd applicant would face an individualised risk, arising from his profile as a child born out of wedlock and from an extra-marital relationship, which were relevant to the assessment of risks that he would face, and that various COI reports suggested that he would face social discrimination and stigma; and

(3)  The Deputy Judge failed to subject the Board’s Decision to appropriate scrutiny and there were error of law and/or procedural unfairness as the Board had (i)  failed to discharge its duty of joint endeavour when assessing their unique personalised risk; (ii)  relied on speculative and/or illogical reasoning regarding the risk of harm without due regard for the evidence; and (iii)  erred in law by requiring proof of past harm to establish a risk of future harm.

12.Pursuant to the directions given by Au JA on 15 November 2022 and 22 November 2022, Mr Jack Wong, Government Counsel for the Director lodged written submissions on 30 November 2022.[6]  In those submissions, Mr Wong made the following submissions:

(1)  As the Board had considered all the available evidence and the COI, it was entitled to conclude that there was no merit in the applicants’ case;

(2)  Although the Director does not dispute that the Board did not address the 2^nd applicant’s claim separately in his individual circumstances, this was not sufficient for the 2^nd applicant’s appeal to be allowed as the 1^st applicant’s appeal had no merit and no child-specific claim was made by the 1^st applicant on the 2^nd applicant’s behalf which had not been advanced or considered by the Board because of a lack of legal representation on his behalf before the Board; and

(3)  As the 2^nd applicant’s intended judicial review had no merit, the absence of legal representation for the 2^nd applicant in his appeal was a mere irregularity.

13.We heard the appeal on 5 December 2022.  A Tagalog interpreter was present to provide language assistance.  During the hearing, the 1^st applicant alleged that she had applied for legal aid for the 2^nd applicant but they would only have the result in February 2023, and that a hearing in November 2022 was cancelled.  In support, she handed up the following documents (collectively referred to as the “LAD Documents”):

(1)  Two legal aid processing cards both dated 29 July 2022 issued by the Application and Processing Division of the Legal Aid Department in respect of (i)  the 1^st applicant’s own legal aid application, and (ii)  the 2^nd applicant’s legal aid application made by the 1^st applicant on his behalf; and

(2)  A letter from the Legal Aid Department dated 14 September 2022 stating that her own (and not the 2^nd applicant’s)  legal aid appeal was fixed to be hearing before the Registrar of High Court on 23 November 2022, with a copy of a Notice of Appeal against legal aid refusal dated 14 September 2022 attached.

14.From the Court record and the LAD Documents, it is noted that the 1^st applicant applied for legal aid for herself as well as on behalf of the 2^nd applicant on 29 July 2022 but both legal aid applications were rejected by the Director of Legal Aid on 6 September 2022.  From the LAD Documents, it also appeared that only the 1^st applicant lodged an appeal against the Director of Legal Aid’s refusal of her own legal aid appeal.  There was also no indication from the LAD Documents to support her bare contention that the hearing on 27 November 2022 was cancelled or when the result of her legal aid appeal would be handed down.  It also did not indicate from the LAD Documents that the 2^nd applicant had lodged an appeal against the Director of Legal Aid’s refusal of his own legal aid appeal.

15.On the basis of the above, we agree with the Director to proceed with the hearing of the present appeal.

Discussion

16.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.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 applicants. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

18.With respect to the 1^st applicant, it is clear that her appeal is without merit.  As a start, the matters raised in the Notice of Appeal and written submissions in relation to her case predominately focused on the assessment of the evidence and the COI and general assertions of her fear if refouled.  As repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  It is clear from the Board’s Decision that, regarding the 1^st applicant’s case, the Board had already considered all the evidence advanced by her as well as the COI, and assessed that there was no real risk of harm even if the 1^st applicant were refouled, and that in any event, state protection and internal relocation would be available for her.  These are conclusions of fact which were open to the Board.  As noted by the Deputy Judge, there was no error of law or procedural unfairness in the Board’s Decision with respect to the 1^st applicant’s case.

19.For the above reasons, the 1^st applicant’s appeal had no merit and must fail.  Accordingly, we dismiss the 1^st applicant’s appeal.

20.Insofar as the 2^nd applicant is concerned, as mentioned above, at the hearing the Director confirmed that the 2^nd applicant’s appeal should be allowed and consented to the orders we have set out at [3] above, given that the matter will be reconsidered by the Board again, we will say no more on the 2^nd applicant’s non-refoulement application.

21.Insofar as costs is concerned, the Director asked for costs in relation to the 1^st applicant’s appeal.  In response, the 1^st applicant submitted that she had no income.  In our view, as the Director only participated in this appeal at the Court’s request, and bearing in mind that the grounds of appeal advanced by the 1^st applicant have been unsuccessful, we make no order as to costs in respect of the 1^st applicant’s appeal.

The applicants appeared in person

Mr Jack Wong, Government Counsel of Department of Justice, for the putative interested party