RE CASUGA JENILYN DILIM AND ANOTHER

CACV 319/2023, [2024] HKCA 365

On Appeal From [2023] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 319 OF 2023

(ON APPEAL FROM HCAL NO. 2969 OF 2019)

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JUDGMENT

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

I.  The appeal

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Anthony To given on 10 October 2023 refusing to grant them extension of time for leave to apply for judicial review and refusing their application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’). The Board dismissed their appeal against the decision of the Director of Immigration (‘the Director’) which refused their non-refoulement claims.

II.  The applicants’ claim

2.  The applicants are members of a family.  The 1^st applicant is the mother of the 2^nd applicant.  They are both nationals of the Philippines.  The 2^nd applicant was born in Hong Kong^[1].

3.  On 28 November 2012, the 1^st applicant last arrived in Hong Kong as a domestic helper.  In April 2013, the 1^st applicant’s employment contract was terminated.  She was granted extension of time to stay until May 2013 but she overstayed.  On 8 June 2015, the 1^st applicant lodged her non‑refoulement claim.  On 19 October 2015, the 1^st applicant lodged another non‑refoulement claim on behalf of the 2^nd applicant minor^[2].  The 2^nd applicant was born in Hong Kong on 21 June 2015 from a relationship between the 1^st applicant and a boy friend. 

4.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by the 1^st applicant’s husband in the Philippines due to a dispute with him.  The 1^st applicant is also scared of returning home for fear of discrimination against her because of her extra‑marital relationship and the 2^nd applicant being discriminated because of his illegitimacy.  The details of the applicants’ claims are set out at [10] of the Board’s decision.  In brief, the 1^st applicant had two daughters with her husband.  The husband had extra-marital affair.  The 1^st applicant began a relationship with a former boyfriend from the Philippines named Lowell who comes to Hong Kong frequently.  Together, they gave birth to the 2^nd applicant, a son, born in June 2015.  In November 2015, after the husband learned of the 1^st applicant’s relationship with Lowell, he threatened to abduct the two daughters.  The husband later went twice to the 1^st applicant’s grandparents’ home threatening to kill the 1^st and 2^nd applicants.  In May 2017, the 1^st applicant entered into a relationship in Hong Kong with another man named Andy.  The husband learned about this new relationship and threatened to harm both the 1^st applicant and Andy if they ever go to the Philippines.  In April 2018, the 1^st applicant and Andy gave birth to a son^[3].  The 1^st applicant now claims that another son was born of this relationship.

III.  The Director’s Decision

5.  The Director decided against the applicants’ non‑refoulement claims on 18 April 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights (‘BOR 2’) Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

IV.  The Board’s Decision

6.  The applicants appealed to the Board against the Director’s Decision.  An oral hearing was held on 10 January 2019 during which the 1^st applicant testified for herself and on behalf of the 2^nd applicant as he was too young to be heard.  The 2^nd applicant relied on his mother’s case of non‑refoulement.  By a decision dated 14 March 2019, the Board dismissed the appeal.

7.  The Board accepted the 1^st applicant’s testimony and assessed her claim on the basis as asserted.  The Board held that after the husband was allowed access to his daughters, he had not attempted to abduct them and had never actually harmed them or the 1^st applicant or her family.  The husband’s threats were the result of the 1^st applicant’s refusal for the husband’s access to the daughters.  The Board found that the husband’s adverse interest in the 1^st applicant and Andy dissipated over time.  The husband is no longer a threat to the applicants and Andy.  The Board found that there was adequate state protection as the 1^st applicant’s family was able to get police assistance in the incident where the husband threatened to abduct the two daughters^[4].  The Board also found both applicants will not face a real risk of discrimination. 

V.  The Judge’s decision

8.  On 31 December 2021, by letter of the Court, the Court advised the 1^st applicant that since the 2^nd applicant was a minor, she should seek independent legal representation for the 2^nd applicant by legal aid or private solicitors.  More than 20 months have lapsed and the 1^st applicant took no steps.  Having considered the merits of the case, the Court held that the absence of legal representation for the 2^nd applicant was a mere irregularity and proceeded to determine the applicants’ extension of time for leave for judicial review application^[5].  The Judge held that the applicants had not advanced any grounds for judicial review in their Form 86.  In their supporting affirmation, the only complaint raised was that the Board disregarded their dangerous situation.  After considering the applicants’ oral submissions during the hearing, the Judge held that in the absence of specific grounds, the applicants’ application must be refused.  In effect, the applicants were challenging the Board’s finding of fact which is impermissible unless it can be shown that there was error of law, procedural unfairness or irrationality[6].

VI.  This appeal

9.  On 16 October 2023, the 1^st applicant (on behalf of herself and the 2^nd applicant) filed a notice of appeal.  The notice of appeal stated :

‘ The High Court did not consider my appeal properly. The Court did not find any error. Actully have many error.’

10.  On 19 October 2023, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and is required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on his behalf, to rectify the position.  After a lapse of over four months, noting that no steps had been taken by the applicants, the Registrar of Civil Appeal directed on 1 March 2024 that the appeal be proceeded with, and written submissions be lodged by the stipulated deadline, of which the applicants have complied with.

11.  In the applicants’ written submissions, the applicants simply reiterated the case that the 1^st applicant’s husband wanted to kill them.  The 1^st applicant stated that she has now three children in Hong Kong.  She asked the Court to help the young babies.

VII.   Our view

12.  We are not concerned with the two other children the 1^st applicant has as they are not parties to the proceedings.

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board : Re Kartini [2019] HKCA 1022.

15.  In relation to the applicants’ appeal, neither the notice of appeal nor the written submission has pointed to any error in the Judge’s decision or the reasons he gave for his decision. Moreover, as noted above, the Board rejected the applicants’ claim based on the dissipation of the risk that the husband will harm the 1^st applicant and their daughters.  We do not accept that the matters stated in the notice of appeal and the written submission have shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons.  In our view, the applicants have failed to raise any viable ground of appeal against the Judge’s decision.  As the applicants’ appeal has no merits, we dismiss it.

16.  In the case of the 2^nd applicant, he is a minor.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) 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;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34]‑[35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47]-[54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non‑refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50]‑[53], [56]‑[57].

33. Third, on the other hand, 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.’

17.  In the present case, the 2^nd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim.  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of the 1^st applicant’s claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd applicant’s claim.  Further the Board had expressly considered the claim that the 2^nd applicant will be discriminated as an illegitimate child.

18.  We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.  We treat the non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd applicant’s appeal a nullity.  As the 2^nd applicant’s appeal has no merits, we dismiss it.