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HCAL 1897/2019
[2024] HKCFI 3252
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1897 OF 2019
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BETWEEN
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Sambalod Junipher Rasonable |
1st Applicant |
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Sambalod Lotis Gutierrez |
2nd Applicant |
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Sambalod Aiden Justine Gutierrez |
3rd Applicant |
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Sambalod Akahsya Liopher Gutierrez |
4th Applicant |
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Amaya Julia |
5th Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
28 October 2024 |
| Date of Judgment: |
31 December 2024 |
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J U D G M E N T
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THE APPLICATION
1. The 1st applicant is the father, the 2nd applicant, the mother. They are the guardian ad litem of the 3rd applicant, the son, aged 11, the 4th applicant, the daughter, aged 10, and the 5th applicant, the daughter, aged 7, collectively called (“the children”). The children’s claims rely upon the facts of their parents.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
3. The applicants appeared before the Court on 28 October 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.
5. At the hearing, the parents produced 3 pink cards, showing that they had applied for legal aid. The Court had adjourned the matter for 3 months for the applicants to apply for legal aid. The applicants have not yet obtained the approval of the Director of Legal Aid. Having considered the merits of their cases, this Court refused to adjourn the matter further and proceeded to hear the application.
The applicants
6. The applicants are Filipinos. The 1st, 3rd and 4th applicants last arrived in Hong Kong on 9 April 2017. They overstayed and surrendered to the Immigration Department on 15 November 2017. Meanwhile, the 2nd applicant last arrived in Hong Kong on 5 July 2016 to work as a foreign domestic helper (“FDH”). Her contract was prematurely terminated on 31 July 2016 and she overstayed since 15 August 2016. On 28 December 2017, she gave birth to the 5th applicant. Subsequently, the 1st, 2nd, 3rd, 4th and 5th applicants (“the applicants”) made their non-refoulement claims. The claims were made on the basis that, if refouled, they would be harmed or even killed by (i) a group of gangsters because the 1st applicant witnessed a murder committed by them and (ii) the creditor of the 2nd applicant (“the creditor”) due to a loan dispute.
7. According to the 2nd applicant, she had been running a second-hand clothing business since 2013. In early 2015, she took out a loan from the creditor to expand her business. In around April 2015, the 2nd applicant had an argument with the creditor over the outstanding loan amount, during which she was threatened with court action and violence. On 17 April 2015, the 1st and 2nd applicants’ house (“the house”) was set on fire. A suspect was arrested for arson, but was released later because the key witness refused to testify upon threat by the creditor.
8. The 2nd applicant resumed her work as a FDH in Hong Kong in 2016. She claimed that the creditor had filed a case against her in Court before she left. In late July 2016, the creditor sent his underlings to confiscate all the furniture and property in the house, during which the 1st applicant had an argument with them and received some superficial bruises as a result.
9. As to the 1st applicant, he claimed to have witnessed the murdering of a man by some gangsters when he was doing some wiring work on 6 March 2017. While he was escaping from the scene, he altered the gangsters who ran after him. In the early morning on 13 March 2017, some strangers attempted to make a forced entry to the house, but left eventually upon alerting the neighbours. On the next day, the applicant relocated away from his hometown to his sister’s home with his children. On 20 March 2017, the 1st applicant received a threatening call from a stranger. Out of fear, the 1st applicant left the Philippines on 9 April 2017 with the 3rd and 4th applicants.
10. The 1st applicant maintained contact with his parents, who told him that some unknown men were still seeking his whereabouts from time to time. Meanwhile, the 2nd applicant had no update about the creditor apart from knowing that he and his family had moved to Manila. The 1st and 2nd applicants were of the view that they could not seek protection from the police because they were not influential enough and the police were corrupt. They also considered internal relocation not viable because the gangsters and the creditor had an extensive network.
11. Details of the story of the applicants can be found in paragraph 6 of the Director’s Decision dated 31 July 2018 (“the Director’s Decision”).
The Director’s Decision
12. The Director considered the applicant’s claim in relation to the following risks:
a. risk of 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 on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditor indicated that he had no real intention to seriously harm or kill the 2nd applicant and her family [15]-[16]; (ii) the creditor was not as resourceful as the 2nd applicant claimed [17]; (iii) the conduct of the gangsters showed that the risk of harm was not as imminent as claimed by the 1st applicant [18]-[19]; (iv) there was no evidence indicating that the gangsters had the means to locate the 1st applicant and his family anywhere within the Philippines [20]; (v) state protection would be available [21]-[23] and (vi) internal relocation would be viable [24]-[28].
The Board’s Decision
14. The applicants appealed the Director’s Decision to the Board. On 9 January 2019, the Board conducted an oral hearing.
15. The Board found the 2nd applicant’s account vague. She could neither name the creditor, nor describe how the circumstances of the loan arose. The 2nd applicant also gave contradicting evidence about the loan amount and in relation to the court action. These, coupled with the inconsistencies between her evidence and that of the 1st applicant about the creditor’s threat in April 2015, seriously undermined her credibility [30]-[35].
16. Regarding the 1st applicant, the Board considered that his testimony was plainly an attempt to regurgitate a learned account given his failure in responding to follow-up questions. The fact that he had taken no steps to find out any information about the gangsters and the delay in applying for protection also led the Board to conclude that his account was untruthful [36].
17. Based on such findings, the Board rejected the applicants’ claims on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [39]-[42]. 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
18. The applicants filed Form 86 on 8 July 2019 for leave to apply for judicial review of the Board’s Decision.
19. The applicants rely on the grounds below in support of their application.
(1) Procedural impropriety: failing to apply para. 2 of the UN Committee against Torture; failing to conduct sufficient inquiry into the relevant country of origin information (“COI”); and failing to consider their fear that their enemies would harm them and the children.
(2) Error/misdirection in law: failing to take into account the considerations of psychological strain and threats to them personally.
(3) No sufficient basis to conclude that they would not be at risk of being subjected to torture and/CIDTP upon refoulement.
DISCUSSION
20. 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).
21. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant and the 2nd applicant confirmed that there was an interpreter at the hearing and they had answered the questions from the Board and their answers are true.
22. Having considered the evidence, the Board rejected the evidence of the 1st and the 2nd applicants [27]-[36]. I shall, in particular highlight the relevant findings of the Board below:
“30. I am sorry to have to say that I have rarely come across such manifestly incredible oral testimony. The second appellant’s account was so vague, garbled, incoherent and inconsistent with her previous statements, as well as being unsupported by the testimony of her husband that I have no doubt whatsoever it contained no element of the truth….
36. As to the first appellant’s claims, these were presented in the most robotic fashion imaginable and given in a version almost verbatim to that contained in his brief statement to the respondent….”
23. Although there is no record to show that the Board had separately considered the child specific issues in relation to the children, it had, nevertheless considered the children’s claim under the Convention, as it said:
“37. It should be noted that none of the remaining appellants have any independent claim for international protection.”
24. It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.
25. The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 held, on the issue of the minor not have legal representation, the Court of Appeal had made the decisions below:
“33. … 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.”
26. The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director [2022] HKCA 1121, Hon G Lam and Chow JJA, 3 August 2022, for the same reasons that the minor was unrepresented before the Board and the Board considered their claims as a composite claim, held:
“22. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, found the 1st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1st Applicant’s claim. There was, accordingly, no factual basis, which could support the 2nd Applicant’s claim on any of the applicable grounds.
23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.
24. In the premises, we also find that the 2nd Applicant’s intended judicial review is not reasonably arguable.”
27. The Court will also consider whether the applicants have identified any child-specific issues raised before it. The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:
“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2nd applicant [the child] may separately face in the Philippines.
28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.
29. In the premises, we do not find the 2nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial reviews.”
28. The applicants before me did not raise any child-specific issues relating to the children.
29. As to the grounds under paragraph 19, they are bare assertions without any evidence in support. The issue of psychological stress or threat was simply not raised before the Board.
30. In the circumstances, I find that there is no child-specific issue, which could have been put before the Board had they been legally represented. The applicants fail to show that they have any realistic prospect of success in their intended application for judicial review of the Board’s Decision.
DISPOSTION
31. Accordingly, I dismiss the applicants’ joint 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 children’s application a nullity.
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(K.W. Lung)
Deputy High Court Judge
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1st and 2nd applicants appeared in person and 3rd to 5th applicants unrepresented and did not appear.
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