CAINTO LILIFHER AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1979/2019

[2024] HKCFI 3301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1979 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicants joinly apply for leave to apply for judicial review of the Decision dated 15 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicants asked for a hearing. However, they were absent at the hearing on 11 November 2024. I shall deal with their application on paper.

3.  Time for the applicants to file Form 86 expired on 15 May 2019. The applicants filed their Form 86 on 12 July 2019. Their application is late for more than 7 weeks. I shall deal with this issue below.

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.

The applicants

5.  The 1^st and 2^nd applicants (“the applicants”) are Filipinos. The 1^st applicant had been working in Hong Kong as a foreign domestic helper (“FDH”) and she gave birth to the 2^nd applicant on 4 December 2016. The applicants last arrived in Hong Kong as visitors on 23 December 2016 and they overstayed since 6 March 2017. The 1^st applicant made a non-refoulement claim for herself and on behalf of the 2^nd applicant in July 2017. The claims were made on the basis that, if refouled, they would be harmed or even killed by their family and relatives.

6.  According to the 1^st applicant, she acquainted with a Pakistani male in February 2014 while working as a FDH in Hong Kong and she became pregnant for him in February 2016. Upon discovering the 1^st applicant’s pregnancy, her aunt, who raised her up, refused to accept her and her daughter. Subsequently, the 1^st applicant even learnt from her cousin that she had been disowned by the family.

7.  The 1^st applicant was unsure as to whether they could receive protection from the police. Meanwhile, she considered internal relocation not viable because she lacked the necessary financial resources and had no relative to rely on elsewhere in the Philippines.

8.  Details of the story of the applicants can be found in paragraph 6 of the Director’s Decision dated 15 March 2018 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicants’ claims in relation to the following risks:

a. 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”);

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”).

10.  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 absence of past ill-treatment from the family and relatives of the 1^st and 2^nd applicants indicated a small future risk of harm for returning to the Philippines [11]; (ii) there was no evidence showing that their family and relatives would mobilise resources to locate them anywhere within the country [12]; (iii) state protection would be available [13]-[14] and (iv) internal relocation would be viable [15]-[19].

The Board’s Decision

11.  The applicants appealed the Director’s Decision to the Board. In the Notice of Appeal, the 1^st applicant also claimed that her employer did not pay her salary [1]. The Board conducted an oral hearing on 9 January 2019, with the applicants having no legal representation.

12.  The Board found the 1^st applicant failed to provide any independent evidence to substantiate the claim that her employer did not pay her salary and that in any event, this was irrelevant to a claim for non-refoulement protection [13]-[19]. Regarding the applicants’ claimed fear of harm from their family and relatives, the Board noted inconsistencies and implausibility in the evidence presented [23]-[28]. The absence of contact further indicated that the applicants’ family had no ongoing adverse interest against them. Coupled with the fact that the applicants had not suffered any past harm, the Board considered that they would not face a real risk of harm upon return to the Philippines [29]-[32].

13.  The Board had taken into consideration the child specific issues in relation to the 2^nd applicant in its assessment. The Board noted from the country of origin information that both the government and other non-government organisations had adopted measures to support single mothers and illegitimate children [36]-[40]. The Board therefore considered that any social stigma attached to the 1^st applicant for giving birth out of wedlock and the 2^nd applicant for being an illegitimate mixed-child should not give rise to a real risk of harm [42]. Furthermore, internal relocation would also be available [45]-[50].

14.  Based on such findings, the Board rejected the applicants’ claims on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [51]-[64]. 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

15.  The applicants have filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decisions.

16.  In the 1^st applicant’s affirmation in support of their application, the 1^st applicant said that if she returns to her country, she will be killed with her 2 years old baby.

DISCUSSION

17.  As mentioned in paragraph 3, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

18.  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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  For the reasons given, the Board rejected the 1^st applicant’s evidence in support of their claim. This is a matter of the credibility of the 1^st applicant’s evidence, which is squarely within the province of the Board. The Board had clearly separately assessed the child-specific issues for the 2^nd applicant. The applicants have raised no valid reason to challenge the Board’s Decision.

22.  I find that the applicants have failed to show that there is realistic prospect in their intended application.

DISPOSITION

23.  I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

24.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.