BOOL LORENZA ATIENZA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 925/2019

[2023] HKCFI 2487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 925 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicants jointly applied for leave to apply for judicial review of the Decision dated 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicants appeared before the Court on 6 February 2023.

3.  The 1^st applicant informed the Court that they had applied for legal aid, but the result had not been received from the Director of Legal Aid. The Court noted that the case was adjourned for 3 months in September 2022 for them to obtain legal aid and it should not be further delayed. In view of the fact that the case is not complicated and the applicants do not have merits in their applications, the Court decided to proceed with the hearing without further delay.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicants

5.  The applicants are nationals of the Philippines.  The 1^st applicant (Mother) last entered Hong Kong on 1 October 2016 as a visitor and was permitted to stay until 15 October 2016.  She did not depart and had overstayed since 16 October 2016.  On 26 October 2016, she surrendered to the Immigration Department.  The 2^nd applicant (Husband), together with their children, the 3^rd and 4^th applicants, entered Hong Kong on 13 January 2017 and were permitted to stay as visitors until 27 January 2017.  They also did not depart and had overstayed since 28 January 2017.  On 1 February 2017, they surrendered to the Immigration Department.

6.  On 24 February 2017 and 31 March 2017 respectively, the Mother lodged a non-refoulement claim.  Later, on 10 March 2017 and 31 March 2017, the Husband lodged his non-refoulement claim and lodged the non-refoulement claims on behalf of their children.  The family’s claims were jointly assessed.  Their claims were based on a risk of harm from the moneylenders as the Mother failed to repay the loans.

7.  The applicants claimed that they suffered financial hardship in around 2013 when the 3^rd applicant and the 4^th applicant required medical attention.  At that time, the 1^st applicant, under the influence of a friend, started working in a life insurance company as an insurance agent.  From 2013 to 2015, she was doing well.  However, due to the financial crisis in December 2015, most of her clients were unable to continue the insurance contracts.  The 1^st applicant’s direct supervisor suggested her to borrow money from the moneylenders to fulfil her clients’ insurance contracts as an interim measure.  The 1^st applicant did as suggested. 

8.  In June 2016, the 1^st applicant’s moneylenders found out that the 1^st applicant did not have many clients left.  They started demanding for repayment.  The 1^st applicant had to mortgage her house to repay one of the moneylenders.  Worse still, she found out that her supervisor stole her money and her remaining clients. 

9.  Since June 2016, the 1^st applicant’s moneylenders had been harassing the family for repayment.  In August or September 2016, one of the lenders visited the family’s house and threatened them with a pistol.  Despite the 1^st applicant sold her real estate and her vehicles, the proceeds were insufficient to settle the loans.  Unable to cope with the mental pressures from the constant death threats, the 1^st applicant decided to escape with her family.  Originally, the 1^st applicant did not wish to take away her children as they were doing well in the local schools.  However, it was discovered that some unknown men kept coming to the schools of her son and daughter attempting to find them.  As a result, the family eventually fled to Hong Kong for protection.  Details of their claims are set out at paragraph 6 of the Notice of Decision dated 13 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

10.  The Director considered their claims in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   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”);

(3)   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

(4)   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”).

11.  By way of the Director’s Decision, the Director dismissed their claims. In elaboration, the Director found that (i) the absence of ill-treatment from the moneylenders indicated an unlikelihood of future risk of harm [18]-[20]; (ii) state protection would be available to them [21]-[22]; and (iii) internal relocation was a viable option for them [23]-[27].

The Board’s Decision

12.  The applicants appealed the Director’s Decision to the Board.  On 4 December 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant testified on the behalf of the family [10].

13.  Having considered the evidence, the Board found that the number and nature of the inconsistencies and contradictions undermined the reliability of the applicants’ claims [32].  In particular, the Board noted that the 1^st applicant’s evidence on the alleged enemies was inconsistent and that she had missed out a significant piece of information that she was allegedly located by one of the moneylenders while she went into hiding [32].  Further, the Board refused to accept that the 1^st applicant had borrowed a sum as alleged; that the moneylenders remained as a threat to the family, especially the 1^st applicant had not heard from them since October 2016; that the applicants had suffered any physical or mental sufferings that attained a minimum level of severity; that the Philippine government refused to offer assistance to the family [33].

14.  In addition, the Board found that the country of origin information showed the availability of state protection [39]- [46].  In any event, internal relocation was also a viable alternative for the applicants [68]-[71].    

15.  In these premises, the Board refused the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

16.  By Form 86, the applicants applied for leave to apply for judicial review of the Board’s Decision.

17.  In the 1^st applicant’s affidavit in support of their joint application, the 1^st applicant did not set out any specific ground.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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. Before me, the 1^st applicant said that they want to stay in Hong Kong as her son is sick and her daughter should continue with her education in Hong Kong.

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

“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.  The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children, who were not legally represented, in paragraph 34:

“(a) 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 circumstances of each claimant;

(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 may not rise to the level of persecution in the case of an adult may do so in the case of child^[1].”

22.  Although this case was determined before the above Court of Appeal judgment, the law remained the same. It is obvious that the Board had assessed the applicants’ appeals as a composite appeal, without separate consideration of the children’s claims.

23.  There is no good reason in support of the 1^st and the 2^nd applicants to challenge the Board’s Decision and their applications must be dismissed.

24.  In relation to the children, I further take into consideration of the following factors:

(1)   the Court of Appeal in Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA77, Hon Au and Chow JJA, 18 January 2022 held:

“11. … although the Board did not appear to have considered the 2^nd and 3^rd Applicants’ claims separately from their mother’s claim, the Judge considered that in view of the Board’s finding that there were no genuine fear or risk of harm in relation to the 1^st Applicant, it was unnecessary for the Board to consider the impact of such fear and risk in relation to the 2^nd and 3^rd Applicants which called for protection.

21. In the present case, the 2^nd and 3^rd Applicants’ claims were premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2^nd and/or 3^rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.”;

(2) the 3^rd applicant Son, who was born on 12 May 2000, is now of age;

(3) the 4^th applicant Daughter, who was born on 23 June 2006, is now 17 years old, and even if the case is remitted to the Board, by then she will be of age too;

(4) the applicants were legally represented by the duty lawyer at the screening before the immigration officer and there was no child-specific issue brought by the legal representative for the children; and

(5) even at the stage of the hearing before this Court, the 1^st applicant (Mother) has only mentioned that her daughter should continue with her education in Hong Kong, which is not a valid ground for her application;

(6) there is no material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 3^rd and 4^th applicants but not advanced to the Board or considered by it because of the lack of legal representation before the Board; and

(7) for the reasons above, the 3^rd and the 4^th applicants’ application has not realistic prospect of success.

25.  I am, therefore, of the view that there is no realistic prospect of success in the applicants’ joint application for judicial review of the Board’s Decision.

CONCLUSION

26.  Accordingly, the Court dismiss the applicants’ joint application for leave to apply for judicial review of the Board’s Decision.

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