Re Oxina Joan Patricio and Another

CACV 475/2024, [2025] HKCA 757

On Appeal From [2024] HKCFI 2833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 475 OF 2024

(ON APPEAL FROM HCAL NO. 277 OF 2024)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court)  :

1)  The appeal

1.This is an appeal by the applicants against the decision of Deputy High Court Judge KW Lung (the “Judge”)  of 4 November 2024 in which he struck out the application of the 1^st applicant for judicial review, and refused to grant leave to the 2^nd applicant minor for leave to apply for judicial review (the “Judge’s Decision”).  

2.This appeal was scheduled to be heard on 30 July 2025.  Despite the directions from the Court to the applicants dated 9 June 2025 (the “Directions”), the applicants failed to lodge written submission by the stipulated time.  Accordingly by [4] of the Directions, the hearing of the appeal was vacated and the Court will now deal with this appeal on paper. 

2)  Background

3.The 1^st applicant is a national of the Philippines[1]. The 2^nd applicant is her daughter[2]. She was born in Hong Kong on 21 January 2022[3]. Her father is a Bangladeshi national[4].  The 2^nd applicant’s permanent status however has not been established[5]. The claim of the 2^nd applicant relies on that of the 1^st applicant[6].

4.The 1^st applicant had previously worked in Hong Kong as a foreign domestic helper for a number of years.  She last arrived in Hong Kong on 6 February 2016.  She was permitted to stay as a visitor until 11 February 2016.  She surrendered herself to the Immigration Department on 12 February 2016.  She lodged a non-refoulement claim on 25 July 2016.  She alleged that she would be at risk of harm or illegal treatment by her husband and a creditor if refouled back to the Philippines.  The Director of Immigration (the “Director”)  by decision of 10 August 2017 (the “Director’s 1^st Decision”)  rejected her claim.  A notice of appeal/petition was filed before the Torture Claims Appeal Board (the “Board”). By its decision of 4 October 2018, the Board rejected the appeal/petition on all applicable grounds (the “Board’s 1^st Decision”). On 23 October 2018, the 1^st applicant applied for leave to apply for judicial review against the Board’s 1^st Decision in HCAL 2416/2018.  The Judge dismissed the application on 22 July 2020 (the “Judge’s 2416 Decision”)[7].  Her appeal to the Court of Appeal was dismissed in January 2021.  Her subsequent applications to the Court of Appeal and Court of Final Appeal for leave to appeal to the Court of Final Appeal were dismissed in June 2021 and February 2022 respectively[8]. In April 2022, the 1^st applicant wrote to the Immigration Department and asked to make a subsequent claim for non-refoulement.  By his decision of 13 July 2022 (the “Director’s 2^nd Decision”), the Director disallowed the same[9].

5.The 2^nd applicant was born in Hong Kong on 21 January 2022.  On 11 May 2022, the 2^nd applicant’s birth registration was completed with the status of Hong Kong permanent resident “not established”.  The 2^nd applicant’s non-refoulement claim was lodged by the 1^st applicant on her behalf by written significations in July 2022[10].  The claim was dismissed by the Director’s decision of 30 January 2023 (the “Director’s 3^rd Decision”).

6.The bases of the applicants’ claims are that the 1^st applicant will be harmed or killed by a creditor named Delia, and by her husband, Roy.  In addition, as the 2^nd applicant was born out of wedlock, the 1^st applicant is worried that the 2^nd applicant would not be accepted by the 1^st applicant’s home area because she is of mixed race or that she is an illegitimate child.  The 1^st applicant is also afraid that the 2^nd applicant will be harmed or killed by members of the Awami League if refouled to Bangladesh because the 2^nd applicant’s father was formerly affiliated with the Bangladesh Nationalist Party[11].

7.As the 2^nd applicant is a minor, the Judge in the course of the judicial review proceedings asked the 1^st applicant (on 2^nd applicant’s behalf)  to seek legal representation by approaching the Legal Aid Department or private solicitors[12]. The 1^st applicant subsequently applied for legal aid for the 2^nd applicant.  The application was refused.  The Judge regarded the absence of legal representation for the 2^nd applicant as a mere irregularity[13].

8.For the same reasons, in the course of the present appeal, the Registrar of Civil Appeals by directions made on 13 November 2024 directed that steps should be taken on behalf of the minor to comply with O.80 r.2, including taking steps to apply for legal aid.  The applicants failed to comply.  On 13 March 2025, the Registrar of Civil Appeals directed that the appeal would be proceeded with, and directed the applicants to lodge appeal bundles.  On 9 June 2025, the applicants were directed to lodge written submissions failing which the applicants’ right to have an oral hearing would be deemed waived.  No written submissions have been lodged, and the intended oral hearing has hence been vacated.

9.The background facts have been summarized in the Judge’s Decision at [8] to [11] (and see also the Judge’s 2416 Decision at [4]-[5]).

3)  The Director’s Decisions

10.By the Director’s 1^st Decision, the Director decided against the 1^st applicant’s non-refoulement claims.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (“BOR 3”), Bill of Rights Article 2 (right to life)  risk (“BOR 2”), as well as other statutory and convention rights against torture and persecution.

11.By the Director’s 2^nd Decision, the Director decided against the 1^st applicant’s request to make a subsequent claim for non-refoulement protection.  The Director did not accept that there had been significant change of circumstances that would give her intended subsequent claim a realistic prospect of success[14].

12.By the Director’s 3^rd Decision, the Director decided against the 2^nd applicant’s non-refoulement claims.  The decision covered BOR 3, BOR 2, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decisions

13.The 1^st applicant appealed/petitioned to the Board against the Director’s 1^st Decision.  An oral hearing was held on 4 June 2018.  By the Board’s 1^st Decision, the Board dismissed the appeal/petition.

14.The Board’s findings were summarized in the Judge’s 2416 Decision at [8]-[10].

15.The 1^st applicant on behalf of the 2^nd applicant appealed/petitioned to the Board against the Director’s 3^rd Decision.  An oral hearing was held on 5 October 2023.  The 1^st applicant testified on behalf of the 2^nd applicant[15]. By a decision dated 1 December 2023 (the “Board’s 2^nd Decision”), the Board dismissed the appeal/petition.

16.The Board’s findings are summarized in the Judge’s Decision at [14]-[16].

5)  The Judge’s Decision

17.On 6 February 2024, the 1^st applicant filed a Form 86. She named both herself and the 2^nd applicant (by the 1^st applicant on her behalf)  as the applicants.  The Board’s 2^nd Decision was specified as the decision under challenge.  In the supporting affirmation, the 1^st applicant did not raise any specific ground in support[16].

18.In respect of the 1^st applicant’s application, the Judge observed that she had previously lodged her non-refoulement claims.  Those claims, and the subsequent judicial review proceedings, including all appeal attempts, had been unsuccessful.  The Judge held that the 1^st applicant’s application should be struck out as being an abuse of process[17].

19.In respect of the 2^nd applicant’s application, the Judge held that the Board had examined with rigorous examination and anxious scrutiny her case, taking into account the possibilities that the daughter might be refouled to either the Philippines or Bangladesh.  The Judge noted that the mother had not raised any valid reason to challenge the Board’s 2^nd Decision. The Judge himself could not see any child specific issue which should have been brought to the Board’s attention but not due to absence of legal representation. The 2^nd applicant’s application was refused.  

6)  Grounds of appeal

19.The notice of appeal simply stated “I want to appeal”.

20.We will deal with this appeal based on the available documents.

7)  Our view

21.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in the light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mstv Director of Immigration [2018] HKCA 524 at [14].

22.Further, it is well established that the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. 

23.In relation to the 1^st applicants’ appeal, the notice of appeal has failed to point to any error in the Judge’s Decision or the reasons he gave for his decision.  Her refoulement claims had been dealt with before, and the judicial review proceedings and appeal procedure exhausted.  In our view, the Judge was clearly correct in striking her application out as being an abuse of process.

24.In the case of the 2^nd applicant, she is a minor.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

31.  Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47] - [54].

32.  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.’

25.In the present case, the 2^nd applicant’s claims are premised fundamentally and entirely on the 1^st applicant’s claim[18].  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of her claim failed.

26.Despite the rejection of the 1^st applicant’s claim, the Board had separately considered the 2^nd applicants’ claims[19]. As observed by the Judge, the Board did so “with rigorous examination and anxious scrutiny”.  We do not consider that there is any basis to seek judicial review of the Board’s 2^nd Decision.  The Judge also separately considered the 2^nd applicant’s claim, and could not see any child specific issue[20].

27.As the 1^st and 2^nd applicants’ appeal has no merits, we dismiss it.

The 1^st and 2^nd Applicants, unrepresented, acting in person