Penol Sally Barsolaso and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 765/2019

[2023] HKCFI 2446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 765 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 present 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 1^st applicant is the mother of the 2^nd applicant, who was born in Hong Kong on 27 August 2014 and is about 9 years old. This is their joint application. The 2^nd applicant’s application relies upon the facts of the 1^st applicant.

2.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 28 December 2018 (the “Board’s Decision”).

3.The applicants asked for a hearing. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), a date was fixed for the applicants and they appeared before the court on 1 February 2023.

4.On the date of hearing, the 1^st applicant produced a pink card, which showed that she had applied for legal aid on 19 December 2022 and she said she still had not received any reply for the Director of Legal Aid (“DLA”).

5.Notice of her application for legal aid was filed with the Court on 19 December 2022. The matter was ordered to be adjourned for not less than 42 days from the date of the filing of the notice. Having considered the fact that since her application for legal aid, there has been 44 days for the DLA to process her application. Under section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91, the period of staying the proceeding is 42 days from the date of the filing of the legal aid certificate. I also considered that the applicants’ application does not have merit and the issues are not complicated. I therefore decide to proceed with the proceedings without waiting for the reply of the DLA.

6.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.

7.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

8.The applicants are nationals of the Philippines. The 1^st applicant last entered Hong Kong on 3 August 2013 as a foreign domestic helper and was permitted to remain until 11 January 2015 or two weeks after termination of the employment contract, whichever was earlier. On 11 January 2014, her employment contract was prematurely terminated. She was required to leave within two weeks. She did not depart and had overstayed since 26 January 2014. On 7 July 2014, she surrendered to the Immigration Department. On 14 July 2014 and 17 July 2014 respectively, she lodged her non-refoulement claim.

9.On 27 August 2014, she gave birth to the 2^nd applicant in Hong Kong. On 5 February 2015, she also lodged a non-refoulement claim on behalf of the 2^nd applicant. The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s ex-boyfriend Allan De Vera.

10.According to the 1^st applicant, she was in relationship with Allan from 1990 to 2010. Allan worked as an agent in a government office but he was not a government officer. He had been physically abusive towards the 1^st applicant when he was drunk. The 1^st applicant had been working overseas. In 2011, she met her current boyfriend Benjamin in Hong Kong and they fell in love in 2013. In late 2013, the 1^st applicant was pregnant with the 2^nd applicant. The news spread in the Filipino community in Hong Kong. Soon, from November to December 2013, Allan had been texting her to verify the news. After she gave birth to the 2^nd applicant, she told Allan the truth. Allan threatened to kill both of them if they returned. Even after the 1^st applicant cancelled her previous phone number, she learnt that Allan sent text messages of threats to her parents. Out of fear, the applicants decided to seek protection in Hong Kong. Details of their claims are set out at paragraph 7 of the Notice of Decision dated 27 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicants’ claims. In elaboration, the Director found that (i) the claimed fear of harm from Allan was groundless [12]-[17]; (ii) state protection would be available to them [18]-[21]; and (iii) internal relocation was a viable option [22]-[24].

The Board’s Decision

13.The applicants appealed the Director’s Decision to the Board. On 25 October 2018, the Board conducted an oral hearing for their appeals. After the Board explained the purpose of the oral hearing to the 1^st applicant, she stated that she had no further evidence to add [20].

14.Having considered the available evidence, the Board concluded that the applicants’ appeals were devoid of merits. It found that the 1^st applicant was never seriously tortured by Allan; that the threats uttered by Allan were purely out of anger and frustrations; that the 1^st applicant was of the age that she no longer needed to be dependent on her parents; that Allan was not a government officer and he could not locate the applicants everywhere; that the 1^st applicant was equipped with work experience to allow her to work elsewhere; and that the 1^st applicant’s assertions were pure speculations [21].

15.Further, the Board found that state protection would be available to them [24]-[26] and that internal relocation was also a viable option [45]-[50].

16.As a result, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

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

18.The 1^st applicant filed her affidavit in support of their joint application attached with a copy of the Board’s Decision without raising any specific ground.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before, me the 1^st applicant said she was concerned with her son’s welfare. She did not elaborate what welfare she was referring to.

21.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.

22.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 claim 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.

23.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 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, found the 1^st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1^st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2^nd 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 2^nd 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 2^nd Applicant’s intended judicial review is not reasonably arguable.”

24.The present case is similar to the above cases as the Board found that the 1^st applicant’s alleged fear of harm from Allan does not exist, state protection will be available and relocation is a viable alternative for the applicants. Devoid of the facts of the 1^st applicant in support of her application, there is no substance in the 2^nd applicant’s application and I fail to see any child-specific issues, 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

25.In the circumstances, I treat non-legal representation of the 2^nd applicant before this Court as procedural irregularity under Order 2 of the RHC without rendering the proceedings a nullity and I dismiss their joint application.

Dated the 3^rd day of October 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