|
HCAL 277/2024
[2024] HKCFI 2833
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 277 OF 2024
_____________
BETWEEN
|
Oxina Joan Patricio |
1st Applicant |
|
Manik Mala Angel |
2nd Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
_____________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
9 October 2024 |
| Date of Judgment: |
4 November 2024 |
_____________
J U D G M E N T
_____________
THE APPLICATION
1. The 1st applicant is the mother (“the mother”) and the guardian ad litem of the 2nd applicant, her daughter, aged 2, (“the daughter”).
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 1 December 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1st applicant.
3. The applicants appeared before the Court on 9 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. The mother had lodged her non-refoulement before. The Director rejected her claim. She appealed to the Board, which dismissed her appeal. She applied for leave to apply for judicial review of the Board’s decision. See HCAL 2416 of 2018. The Court refused her application by way of Form CALL-1 dated 22 July 2020. Her appeal was dismissed by the Court of Appeal on 27 January 2021. She filed a Notice of Motion for leave to appeal to the Court of Final Appeal and the Court of Appeal dismissed her application. The mother’s application has to be struck out because it is an abuse of process, as held by the Court of Appeal in Fabio’s case[1].
6. The mother informed the Court that she had applied for legal aid. The Court noted that a letter dated 27 June 2014 was sent to her to advise to apply for legal aid for the daughter. She said that she did not know about that. The Court then considered the merits of the daughter’s case. Since she relied upon the facts of the mother, and the mother’s claim had been rejected, there is no merit in the daughter’s claim. The Court therefore refused to adjourn the matter and proceeded with the hearing.
7. The discussion below only deals with the daughter’s application.
The daughter’s case
8. Since the daughter relies upon the facts of her mother. I shall reiterate the mother’s facts in HCAL 2416 of 2018 as the background.
9. The mother is a national of the Philippines. She last came to Hong Kong on 6 February 2016 as a visitor and was permitted to stay until 11 February 2016. She overstayed. On 12 February 2016, she surrendered to the Immigration Department. On 25 July 2016, she lodged her non-refoulement claim.
10. She claimed that if refouled, she would be harmed or killed by her creditor, Delia Panganiban and her husband, Roy M. Oxina. In 1998 she married to Roy and in 1999 she gave birth to a son. Roy never worked. She had come to Hong Kong to work as a domestic helper in 2003 and remitted money to Roy. She was told by her mother that Roy used the money for gambling and womanizing. She stopped remitting money to him. In 2005, she returned to the Philippines and told Roy that she wanted to divorce him. He disagreed and said that he would kill her if he discovered that she had an affair in Hong Kong. In October 2015 whilst she was in the Philippines, the creditor, Delia came to her house together with other people. At that time, her husband had left and moved to his family’s home. They claimed that Roy had borrowed 200,000 pesos from them. They asked her to repay the loan for Roy. She did not have money to repay them. They threatened to harm her if she did not pay. She came to Hong Kong because she did not feel safe.
11. On behalf of the daughter, the mother claimed that, if refouled, the daughter would be targeted/harmed/discriminated by:
(1) the money-lender;
(2) her husband because she had a boyfriend in Hong Kong and she had given birth to the daughter out of wedlock;
(3) local people who might bully/discriminate her because of her social stigma and/or that she is an illegitimate child; and
(4) if refouled to Bangladesh, by the Awami League people (“the AL people”) there because of her father’s political affiliation.
The Director’s Decision
12. The Director considered the daughter’s claims in relation to the following risks:
(a) risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(b) risk 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”);
(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(d) 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”).
13. By way of the Director’s Decision dated 30 January 2023 (“the Director’s Decision”), the Director refused her application as, like her mother’s claim, it was unsubstantiated.
14. The daughter appealed the Director’s Decision to the Board. On 5 October 2023, the Board conducted an oral hearing for her appeal, during which the mother, the daughter and her father were present.
15. The Board had conducted a rather comprehensive assessment of the daughter’s claim. Having considered the evidence, the Board did not accept the issues below. See paragraph 48.
(1) The creditor will seriously harm or kill the daughter if she returns to the Philippines.
(2) The mother’s husband will seriously harm or kill the daughter.
(3) The AL people will harm or kill her in Bangladesh if she returns to Bangladesh.
(4) She faces risk throughout the risk states.
(5) She will suffer injuries to the required severity.
(6) The respective states of the Philippines and Bangladesh will be unwilling to help the daughter.
16. For the reasons above, the Board found that where the daughter returned to the Philippines of Bangladesh, state protection would be available [67]-[79] and internal relocation would be viable [98]-[114].
Application for leave to apply for judicial review
17. The daughter filed Form 86 on 6 February 2024 for leave to apply for judicial review of the Board’s Decision.
18. In the mother’s affirmation in support of the daughter’s application, the mother did not raise any specific ground to challenge the Board’s Decision.
DISCUSSION
19. 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).
20. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother said she did not mean that the Board was wrong and she had nothing further to submit.
21. It is apparent that the Board had examined the daughter’s case with rigorous examination and anxious scrutiny, taking into consideration the possibility that the daughter may return to the Philippines or Bangladesh.
22. The mother has not raised any valid reason to challenge the Board’s Decision. This Court cannot see any child specific issue which should have been brought to the Board’s attention, but has not been done so because of lack of legal representation.
23. There is no realistic prospect of success in the intended application for judicial review of the Board’s Decision.
DISPOSITION
24. The mother’s application is struck out.
25. I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
26. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.
| |
(K.W. Lung) |
| |
Deputy High Court Judge |
The applicants appeared in person.
[1] 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:
“25. In Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal held that it is an abuse of process for an Applicant to file a second application seeking judicial review in respect of the same Board decision and it was a breach of the duty of full and frank disclosure to make such application without stating that there had been a previous unsuccessful application for leave for judicial review of the same decision. Such application is liable to be struck out. It was further held that it would be appropriate to strike out an appeal against such decision as an abuse of process in such circumstances.”
|