Porta Herlyn Hersano and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 991/2019

[2023] HKCFI 2942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 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:

1.  Leave for the applicants to apply for Judicial Review of the Board’s Decision be granted; and

2.  The applicants have to issue the originating summons in accordance with Order 53, rule 5(5) of the RHC within 14 days after this order.

THE APPLICATION

1.The applicants are mother and daughter, who was born in Hong Kong on 17 October 2017, a minor in this case.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 3 April 2019 of 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.As the 2^nd applicant is a minor in this case, the applicants were advised to have legal representation for this hearing and a hearing was fixed for the applicants to appear on 8 May 2023. However, the applicants were absent without prior notice to the Court. Their joint application is therefore dealt with on paper.

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 applicants are nationals of the Philippines.  The 1^st applicant last entered Hong Kong on 15 June 2015 and was permitted to remain as a foreign domestic helper until 15 June 2017 or two weeks after the termination of her employment contract.  On 2 June 2017, her employment contract was terminated.  She did not depart and had overstayed since 16 June 2017.  On 5 July 2017, she surrendered to the Immigration Department.  On 14 July 2017, she informed the immigration officer that she was pregnant.  On 13 September 2017, she lodged a non-refoulement claim. 

6.On 17 October 2017, she gave birth to her daughter, the 2^nd applicant.  On 12 January 2018, she lodged a non-refoulement claim on behalf of the 2^nd applicant. 

7.The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s father, Pablo, her brother Hernanie, and the people from her village as she gave birth to the 2^nd applicant with another man in Hong Kong and she had become a Muslim. 

8.In short, the 1^st applicant separated with her husband in 2014.  While she was in Hong Kong, in mid-2016, she started dating a Pakistani and they got married.  Subsequently, the 1^st applicant converted to Islam and became a Muslim.  In early 2017, the 1^st applicant informed her family of her pregnancy.  Her father and brother threatened to kill her as they disapproved of her relationship with a Muslim and her conversion. In May 2018, the 1^st applicant’s brother assaulted her older daughter and uttered death threats against the 1^st applicant.  Out of fear, the 1^st applicant decided to seek protection in Hong Kong. Details of their claims are set out at paragraph 7 of the Notice of Decision dated 13 August 2018 by the Director (the “Director’s Decision”).  

The Director’s Decision

9.The Director considered the applicants’ 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”).

10.By way of the Director’s Decision, the Director assessed and dismissed their claims.  In elaboration, the Director found that (i) the past events indicated that the risk of harm was low upon their refoulement [17]-[22]; (ii) state protection would be available to them [23]-[29]; and (iii) internal relocation was a viable option [30]-[31]. 

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board.  On 11 January 2019, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave oral testimonies.  In support of their claims, the 1^st applicant called her current husband as a witness and he gave evidence with the assistance of an interpreter qualified in Tagalog and English languages [90].  

12.The Board recapped the applicants’ claims, their oral evidence and the country of origin information (“COI”) [24]-[108].  Having considered the aforesaid, the Board concluded that the 1^st applicant was not a witness of truth [112].  In particular, the Board found that she only received the death threats from her family in one incident back in 2017.  Her father and brother did not take any further actions to act on the threats [113].  Insofar as the 1^st applicant’s relationship with her family was concerned, the Board noted that, on the applicants’ evidence, despite her family members had expressed displeasure over her relationship in Hong Kong, there was no evidence that they intended to inflict any harm to her or her newborn [114]-[121].  In conclusion, the Board found that the 1^st applicant fabricated her claim and rejected the assertions that her brother had harmed her eldest daughter and made death threats against her [122]-[123]. 

13.In passing, the Board also dealt with the relationship between the 1^st applicant and her current husband as the COI indicated a possibility that their new family might be separated until the 1^st applicant’s annulment of previous marriage was finalized [125]-[128].  Nevertheless, it identified the problematic and unclarified matters [129] and found that a period of separation from her current husband while the 1^st applicant was in the process of obtaining an annulment would not warrant any non-refoulement protection [130]. 

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

Application for leave to apply for judicial review

15.The applicants filed Form 86 on 11 April 2019 for leave to apply for judicial review of the Board’s Decision.

16.In the 1^st applicant’s affirmation in support of their joint application, the 1^st applicant said that she does not agree with the Board and if she returns to her country, her ex-husband will kill her.

DISCUSSION

17.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).

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

19.The applicants were not legally represented before the Board. It is clear that the Board had not considered the 2^nd applicant’s case separately, which does not satisfy the requirements 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.  Although the Board’s Decision predates the Court of Appeal case, the law as found by the Court of Appeal in the Fabio’s case remained applicable to this case.

20.The Board had found that the 2^nd applicant’s citizenship or nationality is not mentioned on her birth certificate [129].  It is unclear if the 2^nd applicant may reside in the Philippines under the circumstances.  It is for the Board to be satisfied that the applicants may return to the Philippines where they may stay as the citizens there and other predicaments which can be reasonable foreseen for the 2^nd applicant, such as discrimination by the 1^st applicant’s parents and by other Catholics in the Philippines, matters under the Persecution risk. This is a matter of facts finding for the Board, which is absent in this case.

21.The Board has, therefore, failed to make any finding on the facts of the 2^nd applicant’s claim separately.  This is the applicants’ joint application. The Board has to take into consideration of the 2^nd applicant’s case when it considered the 1^st applicant’s application.  The applicants’ case has to be remitted to the Board for re-consideration.  For this reason, there is a realistic prospect that the Board’s Decision may be set aside.

CONCLUSION

22.I grant leave to the applicants to apply for judicial review of the Board’s Decision. The applicants have to issue the originating summons in accordance with Order 53, rule 5(5) of the RHC, that is, within 14 days after this order.  I further hold that the absence of legal representation of the 2^nd applicant under Order 80, rule 2 of the RHC is only an irregularity under Order 2, rule 1 of the RHC and will not render this proceeding a nullity.

Dated the 30^th day of November 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