ARTICUNA MARIBEL MARIBAO AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 752/2021

[2025] HKCFI 4920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 752 OF 2021

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

Following:

Leave for the 1^st to 3^rd Applicants to apply for judicial review be refused.

Observations for the Applicant:

1.  The 1^st Applicant (“A1”) is a 48-years old national of the Philippines who arrived in Hong Kong in January 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated in October 2010, she did not depart and instead overstayed, and upon giving birth to a daughter, the 2^nd Applicant (“A2”) on 4 March 2011, she surrendered to the Immigration Department and raised a torture claim for both herself and her daughter on the basis that if they returned to the Philippines they would be harmed or killed by a fellow villager over the land dispute between A1 and the villager, and after their torture claims were rejected, they then sought non-refoulement protection on the same basis, and upon subsequently given birth to her son, the 3^rd Applicant (“A3”) on 6 October 2012, A1 also raised a non-refoulement claim for him on the same basis. They have all been released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Shariff Aguak, Maguindanao, the Philippines. After leaving school she assisted in her parents’ farming in her home village.

3.  In 2001 a fellow villager who was also a school principle by the name of Maymona hired A1 to fence a piece of land that Maymona had bought in Tagisa, Libak, Sultan Kudarat Mindanao through A1’s introduction for a fish pond project and to supervise the construction work without pay, and in return Maymona would give A1 4 hectares of her land upon completion of the fish pond project, and so A1 worked on the construction for 2 years without pay until 2003 when the fish pond project was completed.

4.  However, Maymona changed her mind and refused to give A1 the 4 hectares of the land as promised, and after bringing their dispute to the village elders who were however unable to provide any assistance or resolution, A1 took matter into her own hand by pawning those 4 hectares for money to compensate for her work for the past 2 years, and when Maymona found out about it, she became furious and threatened to kill A1, and to avoid such threats, A1 therefore left the country in June 2004 for Saudi Arabia to work as a domestic servant, and in January 2008 she came to Hong Kong to work as a foreign domestic helper, during which she met and formed a relationship with a Pakistani man who was then a torture claimant going through the process of his claim in Hong Kong.

5.  However, her last employment was terminated in late 2010 after she became pregnant with her first child with her Pakistani boyfriend, and as she was afraid to return to the Philippines she therefore overstayed in Hong Kong, and upon giving birth to A2 on 4 March 2011, A1 surrendered to the Immigration Department and raised a torture claim jointly for herself and A2, and after their torture claims were rejected, A1 then sought non-refoulement protection for both of them, for which she completed a Supplementary Claim Form (“SCF”) for them.

6.  Meanwhile in 2012 A1 formally married her Pakistani boyfriend in Hong Kong, and upon giving birth to A3 on 6 October 2012, she raised a non-refoulement claim for him on the same basis, and subsequently attended a screening interview for herself and her 2 children jointly before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 30 October 2017 the Director of Immigration (“Director”) rejected the claims of A1 and A2 on all the applicable grounds other than torture risk, and also A3’s claim 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the claims of each of the Applicants and assessed the level of risk of harm from Maymona upon their return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from Maymona, that there is no evidence of any real intention of Maymona to seriously harm or kill A1 other than angry words and empty threats or of any knowledge of the birth of her 2 children let alone to form any intention to harm them, that in any event it was a private land dispute between A1 and Maymona only without any official involvement that state or police protection would be available to all 3 Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with her 2 children 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 Maymona to locate any of them.

9.  On 10 November 2017, A1 lodged an appeal for herself and her children to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 13 April 2021 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board, while both A2 and A3 who were then 10 and 8 ½ respectively did also answer some questions raised by the Adjudicator regarding their claims. On 4 May 2021, their appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in A1’s evidence that it doubted the credibility of her claim of fear of harm from Maymona over any land dispute that caused her to overstay in Hong Kong to seek protection upon rejecting as incredible and implausible that she would work for 2 years without pay for Maymona in return for 4 hectares of land as alleged or that she was subsequently able to pawn off the 4 hectares of land without any documentary evidence that it did not accept that A1 was a credible or reliable witness and concluded that all the core assertions to her non-refoulement claim had been fabricated and were wholly unreliable that it is not accepted that A1 will face any real risk of harm from Maymona or anyone upon her return to the Philippines, while the claims of A2 and A3 based on the same primary facts of their mother were also rejected for the same reasons, and that the Board in its decision proceeded to find that being minors born in Hong Kong to a Pakistani father and have never been to the Philippines nor do they speak Tagalog that they would not suffer any or much detrimental effect on their education upon their removal from Hong Kong to return to the Philippines with their mother on the basis of relevant COI that support and assistance that they as Filipino citizens would be entitled to from various government departments and NGOs that it did not find any underlying matters which may support potential minor-specific non-refoulement bases specific to the personal circumstances of A2 or A3 either, and concluded that that the claims of all 3 Applicants for non-refoulement protection failed on all applicable grounds.    

11.  On 24 May 2021, A1 filed a Form 86 for herself and her children for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form or her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded their dangerous situation but without putting forth 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 of the Board’s decision.

12.  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: Re Lakhwinder 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.

13.  In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing them in evidence and answers to questions raised of each of their claims, 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.

14.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicants’ claims even if real is a localized one and that it is not unreasonable or unsafe for A1 to relocate with her 2 children to other part of the Philippines, a decision also agreed and confirmed by the Board, there is simply no justification to afford the Applicants with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.  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 each of the Applicants’ claims.

16.  I am of course mindful of the fact that both A2 and A3 being minors at their present respective age of 14 and 13 are not legally represented in these proceedings as required under Order 80 rule 2 of the Rules of the High Court, nor were they in their appeals before the Board, and that it would therefore be necessary for the Court to scrutinize and examine the whether their claims had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases that had not been properly advanced to the Board due to lack of legal representation in their appeals to the Board, as held to be essential by the Court of Appeal in the cases of Fabio Arlyn Timogan [2020] HKCA 971, and Re Jasvir Singh [2021] HKCA 53 as to the proper approach in considering a minor’s claim, of which the Board in its consideration of the claims of A2 and A3 did allude to those principles and propositions as set out in both decisions, and upon scrutinizing the Board’s decision as such, I am unable to see any underlying matters specific to the personal circumstances of either A2 or A3 that may support any potential non-refoulement bases which might not have been advanced to the Board due to their lack of legal representation in their appeal, or for that matter in these proceedings of their leave application, and as I do not find any merits in their application, I shall accordingly treat their lack of legal representation as required by Order 80 rule 2 of RHC as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Re Jasvir Singh, supra.

17.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

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