SALDANA NOEMA WALOHAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1450/2018

[2021] HKCFI 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1450 of 2018

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant

THE APPLICATION

1.  The first applicant filed her Form 86 in her own name only. However, this Court noticed from the Board’s Decision as described below that her two sons were also the appellants before it. There seems to be no reason that her sons should be left out in her application for judicial review. I therefore gave directions to my clerk to make inquiry with the applicant whether she would like to add her two sons in her application for leave to apply for judicial review of the Board’s Decision. According to my clerk, the applicant confirmed that she would like to add her sons as applicants as well. However, she had not attended the High Court Registry to make the amendments herself. I shall therefore, on my own motion, make the amendments, adding her sons as the second and third applicants. Her sons were both born on 27 September 2015. They are minors in these proceedings. Their mother acts as their guardian ad litem for them.

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that Ms Saldana, Noema Walohan be the First Applicant, the guardian ad litem for Master Asare, Daniel saldana be the Second Applicant, Master Asare, David Saldana be the Third Applicant, the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

3.  The applicants did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, the Court will deal with their joint application on paper.

4.  The applicants apply for leave to apply for judicial review of the Decision dated 9 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The sons’ claim relies upon the facts of their mother. I shall call the First Applicant as the applicant and her sons as applicant sons below unless otherwise stated.

The applicant

5.  The applicant is a Filippo national. She was a domestic helper in Hong Kong permitted to stay until 27 December 2015. She gave birth to her two sons on 27 September 2015 and they remained in Hong Kong without the permission of the Director. The applicant and her sons lodged their non-refoulement claim with the Immigration Department by a written signification of 28 April 2016. They withdrew their application. But they revived their application on 30 August 2016.

6.  The applicant claimed that, if refouled, she and her sons would be harmed or killed by her father because of the dishonour she had allegedly brought upon her family. Her fear arose in 1997 where her father, who might be under the influence of drug, sexually molested her. She did not report the matter to police. She had a boyfriend in the Philippines and they had a son. She came to Hong Kong and worked as a domestic helper, leaving her son in the Philippines in the care of her parents. She got married in Hong Kong and gave birth to twin sons. She talked to her mother over the phone of returning to the Philippines. Her father heard about this and was furious because her sons may add financial burden to the family in the Philippines. He threatened to kill her sons if she returns to the Philippines. Details of the incidents are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

7.  The Director considered their application 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. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

8.  By Notice of Decision dated 2 February 2017 (“the Director’s Decision”), the Director refused their claim for the reason that it was not substantiated. The Director found that there were no substantial grounds for believing that she or her sons would be in danger of being harmed or killed by her father upon their return [12]; that state protection would be available to the applicants [14] and that internal relocation was an option open to the applicant [15].

The Board’s Decision

9.  The applicants appealed to the Board against the Director’s Decision. The applicant, on behalf of herself and her sons, attended before the Board on 10 April 2018.

10.  The Board, having considered her evidence, rejected their appeal and affirmed the Director’s Decision. The Board accepted the applicant’s evidence at face value. However, according to her evidence, although she was molested by her father when she was 14 years old, there was no more harm by her father to her; that her family, having accepted her illegitimate son, would also accept her legitimate sons from Hong Kong if they returned to the Philippines, there was simply no risk if they returned to the Philippines. See paragraphs 57-66. Based upon the findings, the Board rejected their claim on all of the risks above.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 24 July 2018 for leave to apply for judicial review of the Board’s Decision. She repeated her story in her affirmation, saying further that she was expecting a third child and she wanted to be safe in Hong Kong.

DISCUSSION

12.  It can be seen that the minors were not legally represented before the Board or in this application and both the Director and the Board had considered the applicant’s claim as a composite claim without separate consideration for the minor sons. This will bring in the considerations in Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020:

“28. It is well settled that it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same Board decision, see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16]; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22].”

“34. In our judgment, the authorities^[1] cited by Mr Pao support the following propositions:

(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.”

13.  The Court of Appeal in a subsequent case Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021 held:

“28. where the parents’ applications for leave to judicially review the Board’s decision have been found to be without merit and should be dismissed, what is the court’s approach to the minor’s leave application to apply for judicial review when, in non-compliance with the rule, he is not legally represented in the proceedings.”

The Court of Appeal came to the following options for the court:

“31. … … 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.”

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

15.  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.”

16.  As the Board found that it would be likely that her family in the Philippines would accept her legitimate sons from Hong Kong, there seems to be no risk for her sons to return to the Philippines. As such, I am satisfied that there were no matters that might support minor-specific non-refoulement grounds not before the Board. I shall therefore adopt the Court of Appeal’s third option of treating the non-compliance with Order 80, rule 2 of the RHC as a mere irregularity.

17.  The applicants fail to show that they or any of them has any reasonable prospect of success in their proposed judicial review.

CONCLUSION

18.  I refuse their joint application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

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

1  In Fabio Arlyn Timogan, leave was granted on the basis of the discovery of additional materials which specifically related to the children and were not fully explored before the Board: [51] ‑ [52] of Fabio Arlyn Timogan.