Dote Purisima Tamayo and Another v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 181/2021

[2023] HKCA 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 181 OF 2021

(ON APPEAL FROM HCAL NO. 3007 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon S T Poon J (giving the Judgment of the Court):

1.  The appeal

1.This is an appeal against the decision dated 7 April 2021 of Deputy High Court Judge P. Li who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) on 13 November 2018.

2.Despite the directions of the Registrar of Civil Appeals of 9 September 2021 given to the applicant, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have his right to have an oral hearing waived, and have elected to have his appeal disposed of on paper. The hearing that was fixed for 15 March 2022 has been vacated.  We will deal with the present application on paper based on the documents filed by the applicant.

2)   Background

3.The 1^st applicant is a national of the Philippines[1]. The 2^nd applicant is the daughter of the 1^st applicant who was born in Hong Kong on 9 March 2017[2].  The 1^st applicant entered into Hong Kong as a foreign domestic helper in 2010 and was given permission to remain.  However, her employment contract was prematurely terminated and she overstayed in Hong Kong.  After she was arrested in December 2016, the 1^st applicant subsequently raised a non-refoulement claim in February 2017.  She then gave birth to her daughter in March 2017.  The 1^st applicant requested that the 2^nd applicant be joined with her claim for non-refoulement[3].  The applicants’ non-refoulement claim was on the basis that if they returned they would be harmed or killed by the 1^st applicant’s two brothers who wished to harm them as because the 1^st applicant gave birth out of wedlock[4].

4.The details of the applicant’s claim have been summarized by the Judge at [5] to [14] of the CALL‑1 Form.

3)   The Director’s Decisions     

5.The Director of Immigration (“the Director”) decided against the applicants’ claim on 27 February 2018.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3 and BOR 2”), as well as his other statutory and convention rights against torture and persecution.

4)   The Board’s Decision

6.The applicant appealed / petitioned against the Director’s Decisions to the Board on 8 March 2018[5]. After a hearing held on 31 July 2018, the Board dismissed the applicant’s appeal against the Director’s decisions on 13 November 2018.

7.The Board held that the 1^st applicant was direct, sincere, responsive, and that she was speaking from her direct and personal experience.  There was no evidence of the 1^st applicant exaggerate or embellishing evidence[6].

8.Therefore, the Board proceeded with considering the 4 applicable grounds against non-refoulement, and held that the applicants were not entitled to non-refoulement on any of the applicable grounds[7].

9.Torture claim was not established due to the two brothers who were threatening the applicants are not state officials but private individuals, and so this does not come within the statutory definition of torture[8]. The 2^nd applicant has not provided enough evidence to satisfy that there was a risk of torture due to her mixed race and background of being born out of wedlock if she relocates to the Philippines[9].

10.BOR 3 risk was not established as the Board found from the available country of origin information that state protection was available to the applicants if they sought for assistance. It was also found that there was less than a remote risk of harm if the applicants relocate to a place outside their home area[10]. The 2^nd applicant has not provided enough evidence to satisfy that there was a risk of cruel, inhumane treatment due to her mixed race and background of being born out of wedlock if she relocates to the Philippines[11].

11.Persecution risk was not established since the Board found that the available information does not indicate that the applicants would be denied of protection due to Convention reasons such as race and religion[12]. The 2^nd applicant has not provided enough evidence to satisfy that there was a risk of persecution due to her mixed race and background of being born out of wedlock if she relocates to the Philippines[13].

12.BOR 2 was not established by the applicants since there was no evidence that the applicants were subject to any threat of death from the state[14].

5)   Decision of the Judge

13.The applicant filed a Form 86 with supporting affirmation before the Judge. In her affidavit in support, the 1^st applicant did not point out any specific error in the decision of the Board[15].

14.The Judge assessed the applicant’s documents and held that the adjudicator was live to the situation of the minor 2^nd applicant. The adjudicator took into account the situation in the Philippines and held that state protection was available. There was no credible evidence that the applicants would suffer mistreatment and discrimination if they were to return. There was no error of law or procedural irregularity[16].

6)   Grounds of appeal

15.The 1^st applicant and the 1^st applicant on behalf of the minor 2^nd applicant stated in their notice of appeal (as best as we can see from the handwriting) that the Judge failed to consider the 1^st applicant’s fear of returning.  She stated that the Judge failed to consider all applicable grounds.  She stated that the Judge failed to consider country of origin information.  These are bare assertions without explanations.

7)   Our view

16.We will repeat the approach of this Court in dealing with cases of this nature:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was, otherwise, plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.In our view, there are no merits in the applicants’ appeal.  Consideration of evidential matters is the task of the Board.  The applicants have not provided any proper ground for their appeal. 

18.The 2^nd applicant is a minor and it is necessary for us to consider her claim separately: Fabio Arlyn Timogan [2020] HKCA 971.  They have not been separately and legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (“RHC”).  But if the Court is satisfied that the Board had achieved high standard of fairness in dealing with the child’s claim and there is no underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the Court to conclude that the child’s intended judicial review is without any merit.  In such a case the Court may dismiss leave application notwithstanding that the child have not been legally represented before the Board and before the Judge, treating non‑compliance with Order 80, rule 2 of the RHC as a mere irregularity : Re Jassal Tajinder Kumar [2021] HKCA 124 per G Lam J at [27].

19.It is pertinent to note that the 2^nd applicant was born in Hong Kong.  There is no evidence that she has been to the Philippines or would be subject to any risk of harm other than those rejected by the Board if she was to go with her parent to the Philippines.  We therefore find that the absence of legal representation of the 2^nd applicant before the Judge and in this appeal as a mere irregularity.

20.We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

The Applicant, unrepresented, acting in person