RE GERSANIBA IRHINE LEBAQUIN AND ANOTHER

CACV 269/2023, [2024] HKCA 513

On appeal from [2023] HKCFI 2137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 269 OF 2023

(ON APPEAL FROM HCAL 374 OF 2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 18 August 2023 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 27 December 2018 (“the Board’s Decision”)  dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 17 January 2017 rejecting the applicants’ non-refoulement claim (“the Director’s Decision”).

Background

2.  The 1^st applicant is a national of the Philippines.  She initially arrived in Hong Kong as a foreign domestic helper, but her employment contract was prematurely terminated on 18 April 2009, after which she remained in Hong Kong and had overstayed.  She thereafter surrendered to the Immigration Department on 24 July 2009. 

3.  On 25 March 2009, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  In 2014, the 1^st applicant married the father of the 2^nd applicant, a Sri Lankan national named Mahamood Senum Mohamed.

4.  On 30 April 2010, the 1^st applicant lodged a torture claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Her torture claim was rejected by the Director on 20 January 2011.

5.  Subsequently, the applicants respectively lodged non-refoulement claims by written submissions dated 8 July 2013 and 16 October 2014.

6.  The 1^st applicant’s claim was based on a fear, should she be refouled to the Philippines, of being harmed or killed by one Mohammad Abdul Aseer, a man whom her family had arranged for her to marry (“Aseer”).  The 2^nd applicant’s claim was (before the Director)  also based on a fear of possible harm by Aseer for similar reasons and (before the Board)  the apparent negative impact on his upbringing in the Philippines without a father.  The details of the applicants’ claims have been summarised by the Judge at [1] to [7] of the Judge’s decision (“the CALL-1 Form”)[1].

7.  The applicants were legally represented by the Duty Lawyer Service in their completion of their Non-Refoulement Claim Forms and at the screening interview conducted by the Director.  By a Notice of Decision dated 17 January 2017 (i.e. the Director’s Decision), the Director decided against the applicants’ claims.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

8.  The applicants appealed to the Board.  After a hearing on 25 May 2018, at which the applicants appeared in person, the Board dismissed the appeal on 27 December 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found on the facts and evidence that the 1^st applicant knew nothing about Aseer, and that in all possibility he could have remarried since he had met her on the one and only occasion in 1995.  Moreover, the Board found that the 1^st applicant’s claims that Aseer would want to take revenge on her because of the shame she had apparently brought to his family are speculative (see [42] of the Board’s Decision).  Further, there was no evidence suggesting that the 1^st applicant was estranged from her own family and that she could not turn to them for assistance as regards the support for the 2^nd applicant.

The Judge’s decision

9.  The applicants filed a Form 86 on 11 February 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.  In the 1^st applicant’s supporting affirmation filed on the same date, she contended that the “Immigration Department [and/or the Board]” had disregarded her “dangerous situation”.

10.  After summarizing the facts and background of the case, giving consideration to the Decisions of the Director and the Board and having heard the oral submissions of the applicants at the hearing, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [20] of the CALL-1 Form:

“13. On 11 February 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just stated that they reject the decision as it disregarded their dangerous situation but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor did she do so at the hearing of their application or put forward any proper ground for their intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicants’ case, the Board rejected their claim on its adverse finding on the credibility of their claimed risk of harm for the thorough and detailed analysis and reasoning set out in paragraphs 39 – 46 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicants’ claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.

17. I am of course mindful of the fact that A2 being a minor now aged 14 was not legally represented in these proceedings as required under Order 80 r 2 of the Rules of the High Court, nor was he in his appeal before the Board, as for the claims of minors it would be necessary to separately consider and examine whether their case has been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan v Even Ruth [2020] HKCA 971 that in some circumstances a lack of legal representation for children claimants before the Board or in the court proceedings can result in procedural unfairness.

18. Given the fact that A2 was born in Hong Kong and has never been to the Philippines and hence never personally received any threats from A1’s former fiancé or his family, and that his claim is entirely premised on his mother’s claim which has been rejected by the Board as not real or foreseeable for the reasons given in the decision, and in dismissing their claim the Board did separately consider A2’s claim including any risk of his mother not being able to support him on her own or any impact which might be on him if his father did not accompany him to return to the Philippines (see [44] - [45] of Board’s decision), and as noted in the Director’s decision that A2 is a Filipino passport holder while his parents are legally married and that both are Muslims, I am unable to see any other matter which may support any potential non-refoulement bases specific to A2 but which might not have been advanced to the Board due to lack of legal representation for him in his appeal before the Board such that the high standards of fairness were not met.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and accordingly I refuse their leave application.”

Grounds for appeal

11.  In the Notice of Appeal filed on 29 August 2023, the applicants stated that:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

12.  In the applicants’ written submissions lodged on 30 April 2024, it was contended, inter alia, that:

(1)  the Judge failed to consider whether the Board fully understood the 1^st applicant’s problems in the “Filipino context”;

(2)  the Board was not “in … firm grasp of the context in Philippines” and that its “only knowledge is through the COI and other general reports”, resulting in “erroneous” assessment of her (and the 2^nd applicant’s)  claim.

13.  We heard the appeal on 28 May 2024.  The 1^st applicant appeared in person whereas the 2^nd applicant was absent.  The 1^st applicant had nothing to add to the matters already stated in the Notice of Appeal and the written submissions.

Discussion

14.  We shall turn to the position of the 2^nd applicant, who is a minor, after dealing with the 1^st applicant’s appeal.

15.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

16.  The 1^st applicant has failed to identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

17.  For these reasons, insofar as the 1^st applicant is concerned, the appeal has no merit.

18.  It is necessary for this court to consider the position of the 2^nd applicant separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan & Ors v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

19.  Pursuant to the directions given by the Registrar of Civil Appeals on 6 October 2023, the 1^st applicant made an application for legal aid on behalf of the 2^nd applicant on 16 November 2023, which was refused by the Director of Legal Aid on 11 January 2024.  Notwithstanding this, the appeal of the 2^nd applicant may be allowed to stand if the court is satisfied that his non-refoulement claim had not been properly assessed by the Director and/or the Board as the court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non-compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar & Ors [2021] HKCA 124 §27.

20.  The proper approach to deal with children’s non-refoulement claims has been considered by this Court in Fabio Arlyn Timogan and Re Jasvir Singh & Ors [2021] HKCA 53 which established that:

(a)  non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)  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;

(c)  ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

21.  In the hearing before the Board, the 1^st applicant (on behalf of the 2^nd applicant)  claimed that the 2^nd applicant would be “negatively impacted” by growing up without his father (see [38] of the Board’s Decision).

22.  It is apparent from the analysis set out in the Board’s Decision that it had specifically considered the 2^nd applicant’s claim, which is the alleged impact on his upbringing in the Philippines without his father (see the Board’s Decision at [44]-[46]).  In particular, the Board noted that there was no reason why assistance could not be sought from the 1^st applicant’s family by the 1^st applicant in terms of support for the 2^nd applicant.

23.  Furthermore, there is nothing to indicate that the merits of the 2^nd applicant’s claim or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the Judge due to the lack of legal representation.

24.  More importantly, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

25.  The Judge in his decision had clearly given due and separate consideration to the 2^nd applicant’s claim (see [17]-[18] of the CALL-1 Form).  The applicants have failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters. 

26.  For these reasons, we dismiss the appeal of the 1^st and 2^nd applicants.