RE SIOANGAN WILNA PAGAO AND ANOTHER

CAMP 335/2021

[2022] HKCA 1315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 335 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2604 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 11 August 2021, the applicants reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 22 April 2021 refusing their application for leave to apply for judicial review ([2021] HKCFI 1036)  (“the Leave Decision”). By a subsequent judgment dated 28 July 2021, the Deputy Judge also refused the applicants’ application for extension of time to appeal against the Leave Decision ([2021] HKCFI 2089)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 9 November 2018 dismissing the applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 26 October 2017 rejecting their claims for non-refoulement protection (“the Director’s Decision”).

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

Background

4.  The applicants are nationals of the Philippines.  The 1^st applicant arrived in Hong Kong on 15 December 2010 and was permitted to remain for employment as foreign domestic helper.  Her employment contract was prematurely terminated on 31 October 2011 and she overstayed in Hong Kong since 15 November 2011.  On 5 December 2011, she was arrested by the police and was referred to the Immigration Department for investigation on 6 December 2011.  She then lodged her torture claim on 19 December 2011 and was released on recognizance on 15 January 2012.  She had absconded since 13 August 2012 and was subsequently rearrested by the police on 15 December 2013.  On 20 January 2014, she lodged a non-refoulement claim which she later withdrew on 15 December 2016.  On 24 April 2017, she applied to reopen her claim.  On 10 July 2017, she further lodged a non-refoulement claim on behalf of her son, the 2^nd applicant, who was born in Hong Kong on 1 May 2017.

5.  In essence, the basis of the applicants’ non-refoulement claim was that they feared they would be harmed or killed by the 1^st applicant’s paternal grandfather if they returned to the Philippines given her conversion into a Muslim and that her son was born out of wedlock.  Factual details of their claim were summarised by the Deputy Judge at [5] of the Leave Decision.

6.  By a Notice of Decision dated 26 October 2017, the Director rejected the applicants’ non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

7.  On 6 November 2017, the applicants appealed against the Director’s Decision to the Board.  On 3 September 2018, an oral hearing which was conducted in English was held before the Board where the 1^st applicant appeared in person and gave evidence on behalf of herself and the 2^nd applicant.  On 9 November 2018, the Board dismissed their appeals.

8.  In essence, the Board was not satisfied that either applicants faced a real chance of harm of any nature in the Philippines.  The Board had carefully considered and analysed her evidence and found that the 1^st applicant’s evidence was not credible as she had given changing evidence over time regarding her alleged threats of harm and had doubt about the character of her grandfather as alleged.  The Board did not believe the 1^st applicant had converted to Muslim.  The Board also did not accept that the 1^st applicant intended the 2^nd applicant to follow the Islamic father or that he would be perceived as a Muslim in the Philippines or faced a real chance of harm.  Having assessed the evidence, the Board considered that the applicants failed to substantiate their claim on all applicable grounds and dismissed their appeals.

The Leave Decision

9.  On 19 November 2018, the 1^st applicant, acting in person and also on behalf of the 2^nd applicant, filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicants did not specify any ground of review in their Form 86 and in the supporting affirmation.

10.  By the Leave Decision, the Deputy Judge refused the applicants’ application for leave to apply for judicial review. His reasons were set out in detail at [14] - [20] of the Leave Decision:

“14. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

‘14 (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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.’

15. 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 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.’

16. This decision was followed by the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021. The Court of Appeal further directed as follows:

‘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 [referring to the Fabio case], 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].’

17. The Board, having considered the applicant’s evidence, went further to consider the applicant son’s case. It came to the conclusion that the applicant did not intend to have her son to have Islamic faith when they returned to the Philippines. Under those circumstances, the applicant son would have no genuine or real risk of harm if he returns to the Philippines. The Board has, therefore, given separate consideration to the son’s personal circumstances.

18. There are no underlying matters in this 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.

19. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20. I therefore refuse to grant leave for the applicants to apply for their intended judicial review. Accordingly, I dismiss their joint application.”

The EOT Decision

11.  Under Order 53, rule 3(4)  of the RHC, the applicants may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.  On 25 May 2021, the applicants filed a summons (“the EOT Summons”)  together with a supporting affidavit for extension of time to appeal against the Leave Decision.  By then, they were 19 days late with their intended appeal.  In supporting affidavit, the 1^st applicant only stated that she did not receive the letter from the Court.

13.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent to the applicants on 22 April 2021 by post and was not returned.  The Deputy Judge further noted that the Board had considered the 1^st and 2^nd applicants’ case separately and there were no underlying matters in this case which may show that there may be grounds specific to the minor son’s claim which had not been adequately advanced to the Board on his behalf because of the lack of legal representation.  Further, there was no evidence to show that the Board erred in its finding of the facts or the application of the law to their case.  As there was no prospect of success in their intended appeal, the Deputy Judge dismissed their application for extension of time to appeal.

The Present Application

14.  By a summons and the 1^st applicant’s supporting affidavit filed on 11 August 2011, the applicants reapplied for extension of time against the Leave Decision.  No intended ground of appeal was specified in the summons or the 1^st applicant’s supporting affidavit.

15.  Given that the 2^nd applicant is a minor, by the directions made by the Registrar of Civil Appeals on 16 August 2021, the applicants were directed to take steps on behalf of the 2^nd applicant as soon as possible to comply with Order 80, rule 2 of the RHC, which may include applying for legal aid for the conduct of applicants’ appeal.  However, the applicants did not comply with those directions.  Accordingly, by the further directions made by the Registrar of Civil Appeals on 19 November 2021, this Court proceeded to determine the present summons based on the available materials.

16.  Contrary to the directions made by the Registrar of Civil Appeals on 19 November 2021, the applicants did not lodge any written submissions in support of their present application.

Discussion

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In relation to non-refoulement claims made by or on behalf of a minor, the Court’s approach is set out in Re Jasvir Singh [2021] HKCA 53 at [30] - [33] and Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 971.

20.  Although the applicants’ delay of 19 days is not substantial, their intended appeal is wholly without merit.  The applicants have not provided any particulars or shown any error in the Deputy Judge’s Decision in refusing to grant leave to apply for judicial review.  Accordingly, as the applicants failed to advance any ground of appeal, their intended appeal is a nonstarter and must fail on this basis alone.

21.  Further, in relation to the 2^nd applicant, who is a minor, the Board had also considered his personal circumstances before finding that he would have no genuine or real risk of harm if he returned to the Philippines.[5] Unlike the situation in Fabio Arlyn Timogan where there were materials specific to the minors’ claims which had not been advanced or adequately advanced to the Board[6], in the present case, there is no evidence that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but were not advanced to the Board or not considered by it because of the lack of legal representation before the Board.

22.  As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the Court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the Court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  This Court is satisfied that this is the situation in respect of the 2^nd applicant’s claim in the present case.

23.  All in all, the applicants have failed to substantiate any alleged error of the Deputy Judge in the Decision, and have failed to raise any viable ground of appeal against the Leave Decision.

24.  For the above reasons, the applicants’ summons dated 11 August 2021 is dismissed, with the 2^nd applicant’s lack of legal representation treated as an irregularity without rendering the proceedings a nullity.