Hatulan Ailyn Del Rosario and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 530/2023

[2024] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 530 of 2023

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, the son, aged two and a half years old.

2.The applicants jointly apply for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office respectively dated 30 January 2023 in respect of the 1^st applicant (“the Board’s 1^st Decision) and 18 August 2023 in respect of the 2^nd applicant of (“the Board’s 2^nd Decision”), collectively called (“the Board’s Decisions”).  Their joint application relies upon the facts of the 1^st applicant.

3.Since the 2^nd applicant is a minor, the Court had called the applicants and they appeared before it on 6 March 2024.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party; the decisions in respect of which relief is sought are the Boards’ Decisions.

5.The 1^st applicant informed the Court that she had applied for legal aid and was still waiting for the result. Having considered that the application to the Director of Legal Aid (“DLA”) was made on 29 December, 2023 and there has been a lapse of more than 42 days from that date to the date of the hearing before the Court and coupled with the merits of the case, the Court decided to proceed with the hearing without adjourning it for the DLA’s result.

The applicants

6.The applicants are Filipinos. The 1^st applicant last arrived in Hong Kong as a visitor on 20 November 2016 and overstayed since 5 December 2016.  On 15 November 2021, she surrendered to the Immigration Department and made a non-refoulement claim. On 31 December 2021, she gave birth to her son, the 2^nd applicant herein. The 1^st applicant made a non-refoulement claim on behalf of the 2^nd applicant on 11 October 2022 and 20 October 2022. The 1^st and 2^nd applicants’ claims were made on the basis that, if refouled, they would be seriously harmed or even killed by the 1^st applicant’s boyfriend (“Ramil”) due to his personal grudges with the 1^st applicant.

7.According to the 1^st applicant, she got married in July 2012 and she separated with her husband in March 2014. Prior to this marriage, she had given birth to a son, i.e. the 2^nd applicant’s elder brother. The 1^st applicant first met Ramil in the Philippines on 1 April 2015. In around 2016, she met her new boyfriend (“the new boyfriend”) in Hong Kong. When she went back to the Philippines between 10 October 2016 and 5 November 2016, nothing eventful happened because Ramil was not aware of the existence of the new boyfriend.

8.Ramil discovered the 1^st applicant’s relationship with the new boyfriend after she returned to Hong Kong in November 2016. He threatened to kill the 1^st applicant if she returned to the Philippines without breaking up with the new boyfriend.  Since then, the 1^st applicant received around 10 calls per day from Ramil. After the 1^st applicant changed her phone number in around January 2017, Ramil continued to send threatening messages through Facebook. Although she blocked him on Facebook subsequently, she still received threatening messages from different accounts until around November/December 2021.

9.In May 2021, the new boyfriend left the 1^st applicant after discovering that she was pregnant. However, after the 1^st applicant gave birth to the 2^nd applicant on 31 December 2021, the new boyfriend reconciled with her and the three of them lived together from March 2022 until October 2022 when the new boyfriend was detained.  The 1^st applicant told her family about giving birth to the 2^nd applicant, but she was unsure whether Ramil knew about this.

10.The 1^st applicant kept contact with her family in the Philippines. She was informed by them on 31 December 2021 that a man was looking for her, but they had no idea whether that man was Ramil. During her last conversation with them on 28 November 2022, the 1^st applicant merely wished her father a happy birthday.

11.The 1^st applicant, both on behalf of herself and the 2^nd applicant, were of the view that the police could not offer protection to them because they were corrupted and they could not afford bribing them. They also considered internal relocation within the Philippines not viable because they had no friends or relatives elsewhere. Furthermore, Ramil could still locate them because he had many friends/fellow drug dealers across the country. 

12.Details of the story of the 1^st and 2^nd applicants can be found in paragraph 6 of the Director’s Decision dated 21 February 2022 (“the Director’s 1^st Decision”) and paragraph 8 of the Director’s Decision dated 23 December 2022 (“the Director’s 2^nd Decision”).

The Director’s 1^st Decision

13.The Director considered the 1^st applicant’s claim 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”).

14.By way of the Director’s 1^st Decision, the Director dismissed the 1^st applicant’s claim.  The Director found that: (i) the low frequency and extent of past ill-treatment from Ramil indicated that the 1^st applicant did not face a real and foreseeable risk of harm [12]-[13]; (ii) state protection will be available to her upon her return [15]-[21]; (iii) internal relocation is viable [14], [22]-[24] and (iv) the 1^st applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[38].

The Director’s 2^nd Decision

15.The Director considered the 2^nd applicant’s claim 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”).

16.By way of the Director’s 2^nd Decision, the Director dismissed the 2^nd applicant’s claim.  The Director found that as Ramil did not even know the birth of the 2^nd applicant, the alleged risk of harm on him was merely speculative.  The fact that Ramil did not escalate his actions apart from giving verbal threats and the 1^st applicant failure to seek protection at her earliest opportunity also indicated that the 2^nd applicant did not face a real and imminent risk [13]-[15].

17.In any event, (i) state protection will be available to the 2^nd applicant upon his return [17]-[22]; (ii) internal relocation is viable [16], [23]-[24] and (iii) the 2^nd applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s 1^st Decision

18.The 1^st applicant appealed the Director’s 1^st Decision to the Board.  On 19 October 2022, the Board conducted an oral hearing.   

19.The Board did not find the 1^st applicant to be a credible witness. Her evidence about when she knew Ramil, Ramil’s threat towards her, her family’s contact with Ramil was vague, inconsistent and lacking in detail. Although the Board accepted the 1^st applicant’s relationships with Ramil as well as the new boyfriend and that she had given birth to the 2^nd applicant, they were not convinced of the claimed threat from Ramil by her [73]-[91].

20.Based on the findings above, the Board was of the view that the 1^st applicant’s case failed to meet any of the requirement under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [11]-[20], [92]-[95].

21.The Board therefore dismissed the 1^st applicant’s appeal and confirmed the Director’s 1^st decision.

The Board’s 2^nd Decision

22.The 2^nd applicant appealed the Director’s 2^nd Decision to the Board, which was a differently constituted Board with a different adjudicator.  On 21 July 2023, the Board conducted an oral hearing. Before the Board, the 1^st applicant was the 2^nd applicant’s guardian ad litem. There was no legal representation for the applicants.

23.The 2^nd applicant’s claim relied mainly on the grounds put forward by the 1^st applicant. Having considered the evidence, the Board was of the view that the 2^nd applicant did not face a real risk of harm because (i) Ramil only gave verbal threats and did not escalate his actions over the years; (ii) there was nothing suggesting that Ramil was aware of the existence of the 2^nd applicant and (iii) the 2^nd applicant’s elder brother, who is also a son of the 1^st applicant with another man, had all along been in Philippines and did not suffer any harm from Ramil [46]-[49].

24.Based on the findings above, the 2^nd  applicant’s case failed to meet any of the requirement under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [5]-[14], [45]-[60]. In any event, the country of origin information indicated that assistance can be sought from the authorities [50]-[51] and that internal relocation is also viable [61]-[64].

25.The Board therefore dismissed the 2^nd applicant’s appeal and confirmed the Director’s 2^nd decision.

Application for leave to apply for judicial review of the Board’s Decision

26.The applicants filed Form 86 on 3 April 2023 for leave to apply for judicial review of the Board’s Decisions.

27.In the 1^st applicant’s affidavit, she applied for adding her son in her application without raising any specific ground.

DISCUSSION

28.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

29.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 said that she wants extension of time to stay in Hong Kong for the benefit of her son. The father of her son is also a national of the Philippines. He is making his own refoulement claim. I specifically asked the 1^st applicant if her son returns to the Philippines, whether there will be any child specific issues that she wants the Court to take into consideration.  She said that her son will be exposed to the same risks as she will.

30.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.”

31.In respect of the 1^st applicant, the Board accepted her relationship with Ramil, her new boyfriend and her son. However, the Board rejected her evidence that Ramil had threatened her.  Therefore, she will not be subjected to any harm from Ramil if she returns to the Philippines.

32.It is obvious that the 2^nd applicant’s claim was separately considered by another Board.  This Board found that the 1^st applicant does not have any real risk of harm from Ramil. It dismissed the 2^nd applicant’s appeal.

33.The applicants have raised no valid reasons to challenge the respective Boards’ Decisions.  They therefore fail to show that they have any realistic prospect of success in their proposed judicial review of the Boards’ Decisions.

CONCLUSION

34.I refuse to grant leave to the applicants to apply for judicial review of the Boards’ Decisions.

Dated the 30^th day of May 2024

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