Caluza Maria Lourdes Galang and Another v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 819/2019

[2023] HKCFI 2075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 819 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 Applicants being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and daughter, who was born in Hong Kong on 27 June 2016, a minor in this case. The father of the 2^nd applicant is Eifion Cockram (“Eifion”), a Canadian man who the 1^st applicant met and had a relationship with in Hong Kong and had returned to Canada. The 1^st applicant took out this application as the guardian of the 2^nd applicant. This is their joint application.

2.The applicants apply for leave to apply for judicial review of the Decision dated 1 March 2019 by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

3.The 1^st applicant requested an oral hearing. A hearing was fixed for them on 15 March 2023. However, they were absent without prior notice to the court. The applicants’ application is to be dealt with on the papers.

4.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, the Director of Immigration (the “Director”) is the interested party.

The applicants

5.The 1^st applicant is a citizen of the Philippines. She entered Hong Kong as a domestic helper and her employment contract was prematurely terminated on 19 June 2015. She did not depart and overstayed. She surrendered to the Immigration Department on 17 December 2015. She lodged her non-refoulement claim by written submissions. She was convicted of the offence of overstaying in Hong Kong and was sentenced to 2 weeks’ imprisonment suspended for 3 years. She gave birth to the 2^nd applicant on 27 June 2016 and lodged non-refoulement claim on behalf of the 2^nd applicant on 16 November 2016.

6.The 1^st applicant claimed that, if refouled, she and the 2^nd applicant would be harmed or killed by her husband. According to the 1^st applicant, she was physically and sexually abused by her husband for years because he suspected her having an affair with another man when she worked as a domestic helper in Hong Kong during the period between 2006 and 2008 and also in Bahrain during the period between October 2008 and 2010.

7.In 2012, the 1^st applicant, despite her husband’s objection, went to work as a domestic helper in Hong Kong. In September 2015, she met Eifon and started an intimate relationship with him and lived with him. In October 2015, she was pregnant. On 19 June 2015, Her employment contract was prematurely terminated, but she remained in Hong Kong without the permission of the Director. In December 2015, she surrendered to the Immigration Department. She was informed by her mother that her husband was very angry about her affair and pregnancy and had threatened to kill her and her baby if she returned to the Philippines. Details of her story are set out in paragraph 6 of the Director’s Decision.

8.She considered that police protection is unreliable as the police will simply treat the matter as a family dispute. Internal relocation is also not plausible because she does not have money to live elsewhere and she does not want to live anywhere else herself.

The Director’s Decision

9.The Director considered the 1^st applicant’s application 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 under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director refused their claims for the reason that their claims were not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of the applicants being harmed or killed by the 1^st applicant’s husband [11]; that state protection would be available to them [12]; and that internal relocation would be a viable option for them [13].

11.It appears that there was no separate consideration for the 2^nd applicant apart from the composite consideration for both applicants as set out above.

The Board’s Decision

12.The applicants appealed to the Board against the Director’s Decision and the 1^st applicant appeared before the Board on 19 June 2018. The Board dismissed their appeal having considered the evidence and found that:

(1)  the 1^st applicant’s allegation of recent death threats by her husband was not credible, as her husband demonstrated that he was incapable of following through on previous death threats [79];

(2)  state protection would be available to the applicants [86];

(3)  internal relocation would be a viable option for the 1^st applicant [90]; and

(4)  there are state institutions, charitable and church organizations, and NGOs from whom the 1^st applicant can seek assistance as she establishes a life for herself and her daughter; there is also a possibility that the 2^nd applicant’s father, or the 1^st applicant’s family member or friends can help [91].

13.The Board had also taken into account specific issues applicable to the 2^nd applicant below.

(1)  The 2^nd applicant may go to Canada if Eifion had the financial means to support them both. But the 2^nd applicant is not a Canadian citizen and does not have a right of abode in Canada.

(2)  The institutions in the Philippines may render assistance to the 1^st applicant and the 2^nd applicant [91].

Application for leave to apply for judicial review

14.The 1^st applicant filed Form 86 on 25 March 2019 for herself and on behalf of the 2^nd applicant for leave to apply for judicial review of the Board’s Decision.

15.In the 1^st applicant’s affidavit in support of their application, the 1^st applicant said she would like to review the Board’s Decision.

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

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

18.As the 2^nd applicant is a minor, I have to bear in mind the requirement of separate consideration of the 2^nd applicant’s claim as she was not legally represented before the Board, as set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

19.The Court of Appeal in Begum Mst Sinthia and Zaheer jannatul Ferdaus [2021] HKCA 207, Hon Cheung and Au, 1 March 2021, held:

“25. Second, when dealing with a non‑represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulment claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case‑by‑case basis whether there exist matters that may support potential minor‑specific non‑refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] ‑ [54].

27…. if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such 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 minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the 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] and the authorities cited therein. See also the discussion in Fabio Arlyn Timogan at [57].”

20.As to the 1^st applicant’s application, she has raised no valid ground to challenge the Board’s Decision.

21.As to the 2^nd applicant’s application, the only reason in support of her application is that she may be harmed or killed by the 1^st applicant’s husband. The Board, for the reasons it has given above, has dismissed such risk. The Board had further considered the circumstances specifically related to the 2^nd applicant. From the evidence and materials before this Court, there is no other potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.

22.The applicants therefore fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

23.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application notwithstanding that the 2^nd applicant has not been legally represented before the Board and in the judicial review leave application, treating her non-compliance with Order 80, rule 2 of the RHC as a mere irregularity without rendering the proceedings a nullity.

Dated the 23^rd day of August 2023

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