Garcia Jonites Ramiscal and Another v. Torture Claims Appeal Board

HCAL 1469/2019

[2024] HKCFI 3549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1469 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st Applicant in open court and the 2nd Applicant being excused (“the Applicants”);

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to amend Form 86 to include the 1^st Applicant’s son, Garcia Santino as the 2^nd Applicant be granted;

2.  Leave for the Applicants to apply for judicial review be granted; 

3.  The 2^nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

4.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

5.  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The 1^st Applicant (“A1”) is a 48-year-old national of the Philippines who first arrived in Hong Kong on 11 June 2008 with permission to work as a foreign domestic helper, but when her last employment contract was prematurely terminated in late June 2011, she did not depart and instead overstayed, and was arrested by police 2 years later on 10 June 2013. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her husband as well as her father for giving birth to the 2^nd Applicant (“A2”) out of an extra-marital affair. She was subsequently released on recognizance pending the determination of her claim.

2.A1 was born and raised in Village Angadanan, Isabela City, the Philippines.  After leaving school she married her husband and raised a family with 2 children in her home district.

3.Throughout the marriage her husband who had a violent temper had been abusive towards A1 by frequently beating her whenever he got drunk or suffered gambling losses.

4.To get away from her husband’s abuses A1 in June 2008 came to Hong Kong to work as a foreign domestic helper, during which she met a Filipino man with whom she soon formed a relationship.

5.Soon her extramarital affair in Hong Kong was discovered by her husband in the Philippines who then on the phone threatened to kill her when she returned, and so after her last employment was prematurely terminated in June 2011, A1 was afraid to return to the Philippines and therefore overstayed in Hong Kong where she cohabited with her Filipino boyfriend.

6.On 10 June 2013, A1 was arrested by police and was referred to the Immigration Department for investigation when she raised her non-refoulement claim, and was subsequently released on recognizance pending the determination of her claim.

7.At that time A1 was already pregnant with her child out of her relationship with her Filipino boyfriend, and after it was discovered by both her husband and her father in the Philippines, they threatened to kill her and her child as well for ruining the marriage and bringing shame to her family, and so after giving birth to A2 on 5 December 2013, and when her boyfriend subsequently left them to return to the Philippines by himself without any further news, A1 also raised a non-refoulement claim for A2 on the same bases of fear of harm from her husband and her father, and for which she completed a joint Non-refoulement Claim Form (“NCF”) on 27 November 2017 jointly for both of them and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).                  

8.By a Notice of Decision dated 21 December 2017 the Director of Immigration (“Director”) rejected the claims of both A1 and A2 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.In his decision the Director took into account of all the relevant circumstances of the claims of A1 and A2 and assessed the level of risk of harm from A1’s husband or father upon their return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence or indication of any real intention of either of them to seriously harm or kill them other than angry words and empty threats, that in any event these were private domestic and family disputes between them only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in the Philippines to protect women and children from domestic violence as well as care and shelter from relevant governmental departments and NGOs for women and children, and that reasonable internal relocation alternatives are also available in the Philippines with a large population of 104 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for A1’s husband or father to locate them.

10.On 4 January 2018 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 2 oral hearings on 6 November 2018 and 4 January 2019 before the Board in persons during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 11 April 2019, their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies and discrepancies in A1’s evidence which seriously undermined the reliability of her claim of fear of harm from her husband or her father that caused her to overstay in Hong Kong to seek protection, that even if her claimed threats from her husband or father were true that on her own admission of no further contact with either of them since 2013 that there is no reliable evidence of any real intention of them to seriously harm or kill her or A2 or to still have any adverse interest in her after all these years, that in any event these were private disputes between them without any official involvement that state or police protection would be available to the Applicants upon their return to the Philippines as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from A1’s home district without any risk of being located by either A1’s husband or father that their claims for non-refoulement protection failed on all applicable grounds.    

12.On 30 May 2019 A1 filed a Form 86 naming herself only as the applicant for leave to apply for judicial review of the Board’s decision, but at the hearing of her application she explained that she had by mistake omitted to include her son in the application, and by her request she was accordingly granted leave to amend her Form 86 to include her son as the second applicant, but no ground for seeking relief was given in the Form or in the supporting affirmation, nor was A1 able to do so at the hearing of their application.

13.As such, and given the Board’s correct findings that A1’s problems with her husband and father if true were private domestic or family disputes between them only without any official involvement that state or police protection and internal relocation would be available to A1 upon her return to the Philippines, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by A1, there does not appear to be any reasonably arguable basis to challenge such findings of the Board as far as A1’s claim per se is concerned.

14.She is however the sole custodian of A2 after her boyfriend has abandoned them, and hence even if the Board were correct to reject the credibility of her claim of threats from her husband or father upon her return to the Philippines, the fact remains that she is a married woman with an illegitimate child fathered by another man, and as a single mother raising A2 as an illegitimate child all by herself in the Philippines but of which the Board did not appear to have taken into account or to look into their needs including financial and education in its consideration of the availability of internal relocation option to them upon their refoulement to the Philippines.      

15.More significantly is that A2 who was at the age of only 4 in his appeal before the Board without any legal representation then, nor is he in his present application as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and notwithstanding the fact that his claim was based on the same set of primary facts of his mother, it would be necessary to separately consider and examine whether his claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support his potential minor-specific non-refoulement bases but which might not be properly advanced to the Court in his leave application due to lack of legal representation, or similarly of any error of law or procedural unfairness which might have been committed by the Board in his appeal for the same reason of him being without legal representation, an approached held to be necessary by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and Jasvir Singh & Others [2021] HKCA 53, as claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

16.In the present case of A2 who is by now 11 years old, it appears from the decision that the Board decided all the claims as if they were one composite claim based on A1’s case without giving separate consideration to the personal circumstances of A2 being an illegitimate child born outside of the Philippines without ever been there or received any of its schooling or education for any potential non-refoulement bases specific to him (see [32] – [34] of the decision), not to mention, as noted above, that in its consideration and assessment of the availability of internal relocation that the Board also failed to take A2 into account either his own personal circumstances or when with A1 as a single mother with limited financial means or family support in its assessment that it would not be unduly harsh for them to relocate to anywhere in the Philippines (see [67] – [70] of the decision).

17.For these reasons I am of the view that the intended application of both A1 and A2 for judicial review of the Board’s decision is reasonably arguable based on the grounds that (i) the Board failed to separately and adequately consider A2’s personal circumstances for any potential minor-specific non-refoulement bases; and (ii) the Board erred in law in its assessment of the availability of internal relocation to both Applicants without properly or adequately taking into account of the personal circumstances of A2 and/or with A1 together, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.               

18.In the premises, I extend time to the application of the Applicants, and grant leave to them to apply for judicial review of the Board’s decision on the grounds stated above, and direct the Applicants to file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

19.Given that A2 is still a minor, I also direct that the Official Solicitor shall represent him in these proceedings.

Dated the 17^th day of December 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