Rebueno Mary Grace Rempillo and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1741/2019 [2024] HKCFI 2169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1741 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:

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

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the daughter’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant applied to add her daughter, the 2^nd applicant as party.  Leave was granted.  Form 86 was amended accordingly.

2.The applicants are mother and daughter, aged 37 and 6 respectively.  This is their joint application.  The daughter’s claim relies on the facts of her mother.

3.The applicants apply for leave to apply for judicial review of the Decision dated 14 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

4.The applicants requested an oral hearing.  They appeared before the Court on 12 August 2024.

5.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 applicant

6.The mother is a Filipino.  She last arrived in Hong Kong as a visitor on 20 January 2017 and overstayed since 4 February 2017.  She was arrested by the police on 26 July 2017 and she made a non-refoulement claim on 1 October 2017.  The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her ex-boyfriend.  On 19 January 2018, she gave birth to her daughter and she also made a non-refoulement claim on her behalf on 4 April 2018.

7.According to the mother, she started co-habiting with her ex-boyfriend in 2009 and she gave birth to her eldest son on 14 May 2009.  In order to support her family, she came to Hong Kong to work as a foreign domestic helper in 2011.  In 2016, she returned to the Philippines for vacation. She realised that her ex-boyfriend had become a drug addict when he asked her money for buying drugs.  Upon her refusal, he slapped her on her face with bare hands and put a knife on her neck.  She then fled to her family’s home.  She stayed there for a week, during which her ex-boyfriend kept calling her but she did not answer his call.

8.Thereafter, she went to her aunt’s place.  Her ex-boyfriend continued calling her on the phone and he even went to her family home to look for her.  As she and her aunt were afraid that her ex-boyfriend would be vicious and fatal against her, she went to Manila and subsequently flew to Hong Kong.  While in Hong Kong, she met her Gambian boyfriend and engaged into a romantic relationship with him.  On 19 January 2018, she gave birth to her daughter.  

9.She maintained contact with her mother while in Hong Kong.  Her mother told her in 2017 that after her ex-boyfriend became aware that she was impregnated by another man, he threatened to kill both her and her daughter if they ever returned to the Philippines.

10.She had never sought help from the police because her ex-boyfriend’s uncle was a police officer, so that she believed that they would not offer her any protection against her ex-boyfriend.  Furthermore, the police were corrupt and she could not afford bribing them.  She considered internal relocation not viable as well due to lack of financial resources.

11.Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 6 September 2018 (“the Director’s Decision”).

The Director’s Decision

12.The Director considered the applicants’ claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

13.By way of the Director’s Decision, the Director dismissed the applicants’ claims.  The Director found that: (i) the low intensity and frequency of past ill-treatment from the mother’s ex-boyfriend indicated that he had no real intention to seriously harm or kill her, so that the risk of harm was not as imminent and substantial as claimed [12] - [14]; (ii) state protection would be available upon their return [15] - [16]; (iii) internal relocation would be viable [17] - [20] and (iv) the applicants’ case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21] - [26], Persecution risk [30] - [35] or Torture risk [36] - [38].  

14.The Director also considered the claim about family integrity and found that section 11 of HKBOR expressly excludes persons who do not have a right to enter and remain in Hong Kong to resist removal by relying on such ground [27] - [29].

The Board’s Decision

15.The applicants appealed the Director’s Decision to the Board.  On 13 December 2018, the Board conducted an oral hearing.  The applicants were not legally represented before the Board.

16.The Board accepted that the mother’s ex-boyfriend assaulted her when she refused to give him money.  However, it noted that she left the Philippines so hastily that it appeared she intended to leave her country in any case [69] - [70].  Regarding the mother’s claim that her daughter belonged to Hong Kong and her claim about family integrity, the Board noted that she and her daughter were precluded by section 11 of HKBOR from arguing resistance to removal [73] - [79].  

17.The Board accepted that the mother was in a relationship with a Gambian and the couple had a daughter, who might be entitled to citizenship of either the Philippines or Gambia based on country of origin information (“COI”) [80] - [84].  It also accepted that if the applicants returned to the Philippines, the mother might face difficulties and challenges as well as some discrimination as a single mother with a mixed-race child.  However, the Board was satisfied that the mother would have support from her family [85].  The Board was further satisfied that even if discrimination took place, the consequences would not reach the level as defined under paragraph 54 of the UNHCD Handbook [86].

18.In any event, the Board were of the view that the applicants could avoid the harm from her ex-boyfriend as state protection and internal relocation would be available according to COI [88] - [92].  It concluded that the applicants’ case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12] - [31], [94] - [112].  

19.The Board therefore dismissed the applicants’ appeal and confirmed the Director’s Decision.

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

20.The mother has filed Form 86 on 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.In her affidavit in support of their application, the mother said that she was not satisfied with the Board’s Decision and her life would be in danger if she returned to the Philippines.

DISCUSSION

22.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 applicant’s 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).

23.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  The mother appeared before the Court and I asked her specifically whether there were any child specific issue that was not brought to the Board’s attention and she wanted me to take into account.  She said her daughter may be discriminated if they return to her country because her father is a Hong Kong resident and she may have difficulty in looking after her child if she has to work in the Philippines.  Her mother and her siblings may not be able to help her.

24.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.”

25.The Board has considered the mother’s and her daughter’s situation if they returns to the Philippines.  It had taken into consideration of the daughter’s unique situation such as she has no right to stay in Hong Kong under section 11 of the Ordinance [77] - [79]; the daughter may acquire citizenship from her parents [80]; the mother and her husband may have to determine where they should take their daughter to if they failed their non-refoulement claim [83] – [84]; the difficulties, challenges and discrimination to the mother and her daughter and the mother family’s assistance [85]; and the law in the Philippines providing protection to the mother and the daughter [90].

26.Having taken into consideration all those issues above, the Board came to the conclusion:

“100. … As noted earlier the COI shows that there are support service provided by both government and non-government organizations which the Appellants can access. As the Board has not accepted that the Appellants will face harm from her ex-partner as state protection is available, the Board is satisfied that she can return to her home where she would be able to obtain support from friends or relatives.”

27.For those reasons above, the Board dismissed their appeal.

28.It is apparent that the Board had taken into consideration of the issues in relation to the daughter separately, apart from her mother’s case.  There is nothing that was apparent to the Board in relation to the daughter that was not brought to the Board’s attention because of lack of legal representation.

29.The mother’s concerns of discrimination and difficulty in looking after her daughter in the Philippines are not valid reasons to challenge the Board’s Decision.  Her allegation of discrimination is without any evidence in support.  There is simply no reason that her mother and her siblings will not render any assistance to her.  

30.The applicant therefore fails to show that they or either of them has any realistic prospect of success in their intended judicial review of the Board’s Decision.

CONCLUSION

31.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their application.

32.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.

Dated the 5^th day of September 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