RE UBONGEN LEANNE PALMA AND ANOTHER

CAMP 376/2023 and CAMP 377/2023

(Heard together)  [2024] HKCA 791

On intended appeal from [2023] HKCFI 2504

CAMP 376/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.376 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 300 OF 2019)

________________________

________________________

AND

CAMP 377/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.377 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 818 OF 2022)

________________________

________________________

(Heard together)

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  The 1^st applicant (“Mother”)  in both HCAL 300 of 2019 (“HCAL 300”)  and HCAL 818 of 2022 (“HCAL 818”)  is the mother of the 2^nd applicant in HCAL 300 (“Obinna”)  and the 2^nd applicant in HCAL 818 (“Esther”).  Obinna is a boy born in 2016 and Esther is a girl born in 2020.

2.  By two summonses issued in HCAL 300 and HCAL 818, the three applicants applied for leave to appeal out of time against the decision dated 8 December 2023[1] of Deputy High Court Judge To (“the Judge”).  By that decision, the Judge refused to extend time for them to appeal his earlier order dated 29 September 2023[2] which refused to give them leave to apply for judicial review.  From reading the papers, it appears to us that the applicants are seeking to extend the time for appealing the Judge’s refusal of leave to apply for judicial review.  We therefore treat the applications before us as renewed applications for extension of time to appeal the order of 29 September 2023. 

3.  The three applicants’ intended judicial review was directed against the decisions dated 9 November 2018 and 23 May 2022 of the Torture Claims Appeal Board (“the Board”)  dismissing their respective appeals against the decisions dated 26 January 2018 and 25 January 2021 of the Director of Immigration (“the Director”)  which rejected their claims for non-refoulement protection.

4.  Mother had lodged a written submission on behalf of herself and Obinna and Esther in support of their applications.

5.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, rule 14A of the Rules of the High Court, Cap.4A (“RHC”).

Background

6.  Mother is a national the Philippines aged 41.  She last entered Hong Kong on 12 April 2014 and was permitted to remain until 26 April 2014.  She overstayed and was arrested by the police on 23 June 2015.  On 26 June 2015, she raised a non-refoulement claim for herself.  After the birth of the two children, she raised non-refoulement claims on their behalf.

7.  The claims of Mother, Obinna and Esther are based on fear or being harmed or killed by Mother’s husband (“Husband”)  arising out of Mother’s extra-marital relationship, and also fear of social discrimination arising out of Mother’s extra-marital relationship with the children’s father and also the children being born out of wedlock.  The details of their claims were set out at [6] to [7] of the Board’s decision dated 9 November 2018 and at [8] to [10] of the Board’s decision dated 23 May 2022.

8.  In gist, Mother and Husband married in 2003 in the Philippines and have three children.  Husband was a drug addict and an alcoholic, who had physically abused her in the past.  The most serious incident was in 2005 during which he kicked her in the face.  In late 2012, she came to Hong Kong to work as a foreign domestic helper.  When her second employment contract was prematurely terminated in March 2014, Husband accused her of having an extra-marital affair and threatened to kill her on her return to the Philippines.  She therefore stopped her contact with him and did not return to the Philippines.  In 2015 while overstaying, Mother developed a relationship with a Nigerian man in Hong Kong and gave birth to Obinna and Esther on 15 August 2016 and 13 March 2020 respectively.  In 2018 she sought to contact her children in the Philippines through Facebook, but Husband made use of the account to send her abusive and threatening messages.  As a result, she blocked the account.  She unblocked it in 2020 hoping to connect the children, but Husband again sent abusive and threatening messages through the account. She has since blocked the account and ceased any contact with Husband.  Mother claims that Obinna and Esther will face discrimination in the Philippines and she has no money to bribe the police for their protection.

The Director’s and the Board’s decisions

9.  By two decisions dated 26 January 2018 and 25 January 2021, the Director rejected the applicants’ claims on the torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6] grounds.  The first decision concerns Mother and Obinna while the second decision relates to Esther.  

10.  Mother and Obinna appealed the Director’s decision to the Board on 9 February 2018.  An oral hearing was held on 19 July 2018.  Mother acted in person and gave evidence for herself and also Obinna.  By a decision dated 9 November 2018, the Board dismissed their appeal.  Esther also lodged an appeal against the Director’s decision.  At the oral hearing on 29 September 2021 before the same Board, Esther was represented by a lawyer assigned by the Duty Lawyer scheme, and Mother testified for her.  By a decision dated 23 May 2022, the Board dismissed her appeal.  

11.  In the decision on Mother’s and Obinna’s appeal, the Board accepted that Mother had been subjected to abuse from Husband in 2003 to 2005 and in around 2014 during her return to the Philippines.  It took the form of bare-handed punching, kicking and verbal abuse and the most serious assault was the kick in her face[7].  The Board considered that the level of harm did not attain the requisite level of severity.  The Board also found Mother’s account on the threats made by the Husband not coherent and unreliable. Based on the country of origin information (COI), the Board considered that systematic state protection for victims of domestic violence was available and accessible to Mother, but she had not sought help from the authorities.

12.  The Board had regard to the situation of Obinna as a minor and whether he might be at particular risk by reason of being an illegitimate child.  The Board concluded that the alleged fear of harm from Husband was pure speculation because Husband did not know of the birth of Obinna and there was no objective evidence to support the claimed fear of discrimination.

13.  In the decision on Esther’s appeal, the Board took into account that on Mother’s concession Husband had no knowledge of Esther’s birth, Mother has had no contact with Husband since October 2020, and there is no evidence that Husband is still actively pursuing her or intending on harming or killing her.  The perceived harm from Husband was thus based on speculation.

14.  As to the situation of Esther as a minor, the Board was conscious of the need to separately consider her claim even though the factual basis of her claim was based on her mother’s claim.  In assessing whether Esther may be at particular risk of being discriminated as an illegitimate child, the Board found there was no evidence or specific acts of discrimination that Esther would be subjected to in the Philippines.  Having regard to the COI which shows that illegitimate children are not an uncommon occurrence in the Philippines and the availability of child-specific state protection, the Board did not accept that Esther would be a victim of discrimination if she was to be refouled to the Philippines.

15.  All in all, the Board was not satisfied that any of the applicants has established entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

16.  By a Form 86 dated 1 February 2019 filed in HCAL 300, Mother applied on behalf of herself and Obinna for leave to judicially review the Board’s decision dated 9 November 2018.  By another Form 86 dated 23 August 2022 filed in HCAL 818, Mother applied on behalf of herself and Esther for leave to judicially review the decision of the Board dated 23 May 2022.  No grounds for seeking relief were given in either of the Form 86. In her supporting affirmations for both applications, Mother merely stated that the Board had disregarded their dangerous situation.   

17.  The Judge conducted an oral hearing on 31 August 2023.  Given the commonality in the issues raised by the two applications, the Judge ordered that the two applications be heard together.  By a Form CALL-1 dated 29 September 2023, the Judge refused both applications.  His reasons are encapsulated at [27] to [31] as follows:

“27. The Court noted that the claim for non-refoulement protection includes a claim by a minor, ie the Son. The Mother’s and Son’s claim arose from the same factual matrix, ie the Husband’s threats and ill-treatment of the Mother and the Son’s birth outside of wedlock. The factual basis of their claim is entirely the same. The source of feared harm is the same, ie the Husband and the Filipino communities anywhere in the Philippines. The nature of the feared harm from the Husband is the same, ie physical violence and death. The nature of the feared harm from the Filipino communities is also the same, ie discrimination for giving birth or being born outside of wedlock. The Son’s claim is hinged on the Mother’s and stands or falls with it, though some of the harm is specific to the Mother and some is specific to the Son. However, the Court is well satisfied that the Board had considered all the harm separately and decided the Mother’s and Son’s claim separately according to their own personal circumstances and not as if it were one composite claim. The Daughter’s claim considered in the 2022 Decision is one made solely on her own behalf. There is no issue of a composite claim.

28. Having rigorously examined the two Decisions, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

29. In the 2018 Decision, the Mother who testified on behalf of herself and the Son had given inconsistent evidence. The Board found she was not an entirely credible witness and exaggerated her evidence in order to bolster their case. It accepted most of her evidence about the general setting in which the claim arose, such as the family background, the ill-treatment inflicted on her by her Husband and his threats, other than the threat of death. Except for the inconsistencies between her testimony before the Board and her evidence in the NCFs which the Board rejected, the Board basically assessed their claim on the basis of her assertions and authoritative and credible COI, which the Mother did not dispute. They could have no valid complaint about the Board’s finding of fact. It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds.

30. The Mother also testified on behalf of the Daughter in her appeal before the Board. In the 2022 Decision, the Board made similar finding in respect of the pre-2018 events and accepted the Mother’s evidence about the post-2018 events, insofar as it is supported by credible evidence and not beliefs. It accepted, for example, her evidence about the threats via Facebook, including threats of death, and her Husband’s ignorance about the existence of the Daughter. The Daughter could have no valid complaint about the Board’s finding of fact. Likewise, the Board assessed her claim on the basis of the Mother’s evidence and the COI. It was on that basis that the Board found that the Daughter failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.

31.  The Board’s finding in both the 2018 Decision and 2022 Decision are finding of facts and of the law.  Insofar as the finding of facts are concerned, it is based primarily on the Mother’s evidence and the COI.  The applicants could have no valid reasons to complain.  The finding of facts is exclusively within the province of the Board to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decisions does satisfy the enhanced Wednesbury test.  They are not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks.  The Decisions are utterly without fault.  The proposed judicial reviews of both Decisions have no realistic prospect of success. Accordingly, leave to apply for judicial review under both applications are refused.”

18.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicants may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period expired on 13 October 2023.

19.  By a summons and an affirmation filed on 20 October 2023, Mother applied on behalf of herself and the two children for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 8 December 2023 refused the application.

The present application

20.  On 22 December 2023, the applicants filed the present summons to make a renewed application to this Court for extension of time to appeal.

21.  On 4 January 2024, the Registrar of Civil Appeals drew attention to the fact that Obinna and Esther are minors and should act by a next friend who is required to be legally represented, and directed that steps be taken on their behalf, including making an application for legal aid.  However, no steps were taken by any of the applicants, and directions were given by the Registrar on 12 April 2024 for the appeal to be proceeded with.

Our reasons for decision

22.  In deciding whether to extend time for appealing against the Judge’s decision refusing them 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 respondent if an extension of time were granted.

23.  The applicants were 7 days late when they filed the 20 October 2023 summons.  The 1^st applicant explained in her affirmation that she did not have enough money to appeal and was not aware of the time limit of appeal.  Generally speaking, impecuniosity and ignorance of the law do not constitute satisfactory reasons for delay.  On this occasion, given it was not a substantial delay and minors are involved, we would focus on the merits of the intended appeal, which is the most important consideration.

24.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  Notably, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

25.  In the applicants’ written submission dated 30 April 2024, it was stated that the Board’s assessment of their claims was erroneous and the procedure was problematic, as the Board had relied on COI and reports which did not give an adequate understanding of the situation in the Philippines.  It referred to another COI report[8] to show that the Philippines is fraught with unlawful killings by the police and armed individuals which posed danger for the population.  It was also asserted that Mother’s brother was gunned down on 24 October 2023.   

26.  With regard to Mother’s case, we are of the view that what has been put forward in the written submission does not amount to viable grounds for the Court to intervene by way of judicial review.  Assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers.  The Court may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair.

27.  Significantly, the submission does not give any elaboration or particulars on the complaint about the Board’s decisions, such as how and in what way the assessments of the Board were erroneous or the procedures adopted were problematic.  The submission also has not explained how the report referred to and the claimed killing of Mother’s brother relate to the applicant’s claims and their complaints about the Board’s findings and consideration of the COI.  Contrary to the assertions in the submission, it is apparent from its decisions that the Board had given due consideration to the evidence of Mother and the available relevant COI, and had adequately explained its findings.  Specifically, the Board had properly taken into account the low intensity and frequency of Husband’s past abuse and Mother’s incoherent account of the threats from Husband.  Its conclusion that the level of harm or claimed fear did not reach the threshold required for non-refoulement protection is a finding open to the Board for the reasons given by it.

28.  In respect of Obinna and Esther, we have considered the Judge’s decision and the Board’s decisions on their case in light of this Court’s decisions in Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33]. 

29.  The Judge had in his decision refusing leave to apply for judicial review and the decision refusing extension of time to appeal given full and proper consideration of the fact that Obinna and Esther are minors and of the need to separately consider and examine their claims in light of the principles in Fabio. The Judge held that the Board had properly taken into account the discrimination they might face as children born out of wedlock and the relevant COI according to their own personal circumstances and their access to protection in the Philippines society.  We are in full agreement with the Judge’s reasoning and conclusion.

30.  Specifically, we note that although Obinna’s claim was jointly assessed with the 1^st applicant’s claim, it was clear from its decision that the Board had assessed any risk of harm that he might face as a child conceived out of wedlock if he had to go to and live in the Philippines with Mother.  The Board found that the alleged fear of harm from Husband was speculative as Husband was not aware of Obinna’s existence, and there was no objective basis for discerning a risk of discrimination against him.  In our view, the Board’s finding that the claimed fear of harm did not meet the threshold for non-refoulement protection under the applicable grounds is a conclusion that the Board was entitled to make on the basis of the evidence before it.  There is no basis for the court to intervene by way of judicial review.

31.  In relation to Esther’s claim, which was assessed on its own, the Board had also assessed whether any child-specific risk of harm that she might face on return to the Philippines with Mother.  In considering the risk of discrimination against her and the risk of her being labelled and bullied by people in the Philippines community, the Board had regard to the COI which shows that illegitimate children are not uncommon or in the minority in the Philippines and that child-specific state protection is available to them.  The Board concluded that, in the absence of evidence of discriminatory acts against her, there was no basis for accepting that Esther would become a victim of discrimination.  In our view, this is a finding well open to the Board as a primary decision maker on the basis of the evidence and the available COI before it.

32.  For the above reasons, we are of the view that the Judge did not err in finding the intended judicial review has no reasonable prospect of success, and in refusing leave to apply for judicial review.

33.  We will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court (which requires the two minor applicants to act by a legally represented next friend)  as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.   

34.  As all the applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the two summonses respectively filed in CAMP 376 of 2023 and CAMP 377 of 2023 on 22 December 2023.