ANTONIO CARMELA CALASIAO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1921/2019

[2024] HKCFI 3419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1921 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 13.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 3 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”) on BOR 2 risk. The Board had dismissed their appeal on the other applicable risks of BOR 3 risk and Persecution risk in its Decision dated 9 May 2016 (“the Board’s 1^st Decision”), which the applicants have made no application for judicial review. Their joint application relies upon the facts of the 1^st applicant. Their application is late. Time for filing their application expired on 3 April 2019. Their application was filed on 9 July 2019, which is late for more than 3 months. This issue will be dealt with below.

3.  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.

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 last arrived in Hong Kong on 19 December 2008 to work as a foreign domestic helper (“FDH”). Her contract was prematurely terminated on 24 May 2010 and she had overstayed since 10 June 2010. The 1^st applicant was arrested on 15 April 2011 for overstaying and she raised a torture claim on 17 April 2011. She was re-arrested on 4 July 2011 for taking up unapproved employment and was sentenced to imprisonment of 2 months on 7 July 2011. The 1^st applicant gave birth to the 2^nd applicant on 15 February 2012 and she also made a torture claim on her behalf. The applicants’ torture claims were rejected on 6 July 2012 and their subsequent appeals were also dismissed on 10 August 2012. The applicants lodged further non-refoulement claims on all applicable grounds other than Torture risk[1] on 5 July 2013. The claim was made on the basis that, if refouled, they would be harmed or even killed by the 1^st applicant’s husband because of the 1^st applicant’s extramarital affair in Hong Kong. The 1^st applicant further worried to be imprisoned because she failed to repay a loan owed to a police officer (“the police officer”).

6.  According to the 1^st applicant, she married her husband in July 2005. In September 2005, she borrowed money from the police officer for operation of her flower farm. Due to a typhoon in May 2006, her flower farm was destroyed and hence she could not afford repaying the loan. Since December 2008, the police officer started demanding loan repayment, both in person and through written demands, which continued even after she commenced her work in Hong Kong. In March 2013, a warrant was issued against the 1^st applicant, stating that she would be charged with fraud if she still failed to repay.

7.  In the meantime, the 1^st applicant acquainted a Sri Lankan while working in Hong Kong and she gave birth to a daughter with him on 15 February 2012, i.e. the 2^nd applicant herein. In or around July 2012, the 1^st applicant’s husband found out her extramarital affair and he threatened to kill the applicants upon their return to the Philippines.

8.  The 1^st applicant was of the view that they could not seek protection from the police because the person she owed a loan to was a police officer. She also considered internal relocation not viable because she would have to abandon her children.

9.  Details of the story of the applicants can be found in paragraph 16 of the Director’s Decision dated 2 February 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.  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”); and

(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”).

11.  By way of the Director’s 1^st Decision, the Director dismissed the applicants’ claims on BOR 3 risk and Persecution risk. The Director found that: (i) the absence of past ill-treatment from the police officer indicated that he had no real intention to seriously harm or kill them [25]-[26]; (ii) the perceived harm from the 1^st applicant’s husband was too far-fetched and unrealistic [27]; (iii) state protection would be available [28], [30]-[31]; (iv) internal relocation would be viable [29] and (v) the 1^st applicant’s repeated failure to attend scheduled interviews damaged her credibility and was inconsistent with the conduct of someone genuinely in fear [32].

12.  In the Notice of Further Decision dated 13 February 2017, the Director also rejected the applicants’ claims on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that their right to life under BOR 2 would be violated upon their return.

The Board’s Decisions

13.  The applicants appealed the Director’s 1^st Decision to the Board. On 29 March 2016, the Board conducted an oral hearing. The applicants were not legally represented and the Board did not separately considered the child specific issues in relation to the 2^nd applicant in its assessment.

14.  During the hearing, the 1^st applicant elaborated on her relationship with the police officer, in which the former would supply flowers to the latter for sale upon harvest. The police officer would lend money to the 1^st applicant for growing flowers, but he would retain a certain percentage of the sales proceeds [20]. Meanwhile, the 1^st applicant also claimed for the first time that her husband was a member of the New People’s Army (“NPA”) [23].

15.  Regarding the police officer, the Board found no element of fraud on the part of the 1^st applicant based on the available evidence. Meanwhile, it seemed that a civil rather than a criminal action would be taken against the 1^st applicant’s loan default, so that she would not be imprisoned. As to the issue with her husband, the Board noted from the country of origin information (“COI”) that the NPA had disintegrated. In any event, the problem between the 1^st applicant and her husband had long existed and that they had been living separate lives for many years, so that it is unlikely that her husband would still have adverse interest against her and the 2^nd applicant [31], [42]-[43].

16.  Based on such findings and the fact that the 1^st applicant had never suffered any ill-treatment from her husband or the police officer, the Board rejected the applicants’ claims on BOR 3 risk and Persecution risk [32]-[33], [41]-[49]. Furthermore, internal relocation and state protection would also be available according to the COI [50]-[52].

17.  The Board therefore dismissed the applicants’ appeal and confirmed the Director’s 1^st Decision.

18.  The applicants also appealed the Director’s 2^nd Decision to the Board. On 2 November 2018, the Board conducted an oral hearing. Again, the applicants were not legally represented and the Board did not separately considered the child specific issues in relation to the 2^nd applicant in its assessment.

19.  During the hearing, the 1^st applicant claimed that her elder sister had repaid part of the loan to the police officer [21]. She also claimed that she could not go to Sri Lanka with the 2^nd applicant’s father because she was married before and would not be accepted by his family [23].

20.  In relation to the police officer, the Board found that he had no intention to kill the 1^st applicant. Rather, he merely wanted to recover the unpaid debt, as evidenced from the issue of Court summons. In any event, the risk should have reduced given that part of the loan had been repaid by the 1^st applicant’s elder sister [32]. As to the threat from the 1^st applicant’s husband, given that he and the 1^st applicant had already separated for a long period of time, it is unlikely that he would still have adverse interest against the applicants [33].

21.  Based on such findings, the Board rejected the applicants’ claims on BOR 2 risk [24]-[25], [34]. Furthermore, internal relocation and state protection would also be available [35]-[37].

22.  The Board therefore dismissed the applicants’ appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

23.  The applicants filed Form 86 on 9 July 2019 for leave to apply for judicial review of the Board’s Decision.

24.  In the affidavit in support of their application, the 1^st applicant did not raise any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

25.  As mentioned in paragraph 2, 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 applicants’ case.

26.  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).

27.  The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

28.  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.”

29.  It is noted that the Board did not make a separate assessment of child-specific risk for the 2^nd applicant and there was no legal representation for her before the Board. This Court has taken into consideration of the decisions by the Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020; Re: Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021; and in particular Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, Hon Cheung and Au JJA, 1 Mar 2021. §§29-32 where there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf and the court sees no any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board, it was held that the 2^nd applicant’s intended application for judicial review has no arguable merit.

30.  In this case, when the applicants were legally represented by the duty lawyer for their non-refoulment claim to the Director, they had not raised any child-specific issue for the Director’s consideration. Nor had they raised any such issue with the Board or this Court in their application. The 1^st applicant’s grounds for non-refoulement are her fear of her husband and the police creditor, both of which had been assessed and dismissed by the Board. I cannot see any child-specific issue which was not raised before the Board because the 2^nd applicant was not legally represented.

31.  Therefore, I find that the applicants have failed to raise any valid ground to challenge the Board’s 2^nd Decision.

32.  The applicants therefore fails to show that they have any realistic prospect of success in her proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

33.  I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss their joint application.

34.  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.