OTAD JENNY BERGONIO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 409/2020

[2021] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 409 OF 2020

(ON APPEAL FROM HCAL 626/2018)

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J U D G M E N T

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

Introduction

1.  On 17 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the Applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 16 March 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 15 July 2016 and 20 October 2017 rejecting the Applicants’ non-refoulement claims.

2.  On 26 August 2020, the 1^st Applicant filed, on behalf of herself and the 2^nd Applicant, a Notice of Appeal against the Judge’s decision. 

Background

3.  The 1^st Applicant is a Filipino national.  She last arrived in Hong Kong on 23 August 2014 and was employed as a foreign domestic helper until 27 July 2015.  She did not depart, and has overstayed.  The 1^st Applicant surrendered to the Immigration Department on 9 September 2015.

4.  The 2^nd Applicant is the 1^st Applicant’s daughter, born on 11 May 2015 in Hong Kong out of wedlock.  The 2^nd Applicant’s father is an Indian who is also asylum seeker.  On 13 January 2016, the 1^st Applicant lodged a non-refoulement claim for herself and the 2^nd Applicant. 

5.  The 1^st Applicant’s claim was based on the fears that, if she returned to the Philippines, she would be harmed or even killed by (1) her estranged husband (with whom she had been separated since 2012) and/or his relatives; and (2) his creditor, due to his failure to repay the debt.  The factual background of the claim was succinctly summarized by the Board at [35] – [49] of the Board’s decision.

6.  By notices of decision dated 15 July 2016 and 20 October 2017, the Director assessed the 1^st and 2^nd Applicants’ claims on all applicable grounds, and determined their claims against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], while the latter covered BOR 2 risk[4].

7.  The Applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 14 November 2017, during which the 1^st Applicant gave evidence.  The Board considered that the likelihood of the husband going after the 1^st Applicant to kill or harm her was low due to the passage of time and he was living with another woman.  Further, there was no evidence that the police or other state authorities would not protect the 1^st Applicant.  There was no evidence of the creditor’s pursuit.  As such, the Board concluded that there was no real risk of harm from either the husband or the creditor in the event of refoulement.  The Board also considered that internal relocation in the Philippines was viable.

8.  In respect of the 2^nd Applicant, the Board assessed the risk of harm to her at paragraph 60 of its decision.  It concluded that there was no evidence that she would suffer harm as an illegitimate child.  The Board also rejected the claim of the 2^nd Applicant.

9.  On 16 March 2018 the Board dismissed the 1^st and 2^nd Applicants’ appeals on all the applicable grounds. 

Decision of the court below

10.  On 12 April 2018, the Applicants sought leave from the court to apply for judicial review against the Board’s decision of 16 March 2018.  In her affirmation in support, the 1^st Applicant stated that the Director disregarded the Applicants’ dangerous situation.

11.  Upon consideration of the documents only, on 17 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [14] of the Form CALL-1 ([2020] HKCFI 1683) as follows:

“ 11.  On 12 April 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in their Form, and in A1’s supporting affidavit of the same date she merely stated that she wants to review those decisions as the Director and the Board disregarded her dangerous situation in her home country but without providing any particulars or elaborations as to how they failed to do so or to put forward any other proper or valid ground for their intended application. Nor did they request any oral hearing for their application. As such and in the premises I do not find any reasonably arguable basis for their intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.”

Appeal to this Court

12.  On 26 August 2020, the 1^st Applicant, on behalf of herself and the 2^nd Applicant, filed a Notice of Appeal against the Judge’s decision.  The stated ground of appeal was that the Board disregarded the Applicants’ dangerous situation.

13.  The 1^st Applicant lodged written submissions on appeal on 19 February 2021.  In those submissions, the 1^st Applicant argued:

(1)  the Judge and the Board lacked sensitivity toward the danger faced by her;

(2)  the Director failed to consider the factors in local contexts and does not understand the intricacies of the situation in the country;

(3)  the 2^nd Applicant should be under the protection of United Nations Convention on the Rights of the Child; and

(4)  human rights report on the Philippines indicate that the country is fraught with unlawful or extrajudicial killings, further exacerbated by that country’s “drug war” and the New People’s Army.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  And

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  The Applicants did not in the Notice of Appeal or submissions identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.  As correctly explained by the Judge, the bare assertion in her affirmation (and repeated in her Notice of Appeal) that the Board failed to have regard to her dangerous situation without identifying any public law errors in the Board’s decision is not a proper ground of appeal.  

16.  The same observation applied to the general assertions under (1) (2) and (4) of her submissions.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  In the present case, the Board concluded that there was no real risk of harm from either the husband or the creditor in the event of refoulement.  The Board also considered that internal relocation in the Philippines was viable.  Such findings are within the province of the Board and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  As for the 1^st Applicant now being pregnant a second time in Hong Kong, it does not give rise to a proper public law basis for disturbing the Board’s decision.

19.  Having considered the materials before us, we are of the view that the Judge’s observations regarding the 1^st Applicant are fully justified.  There is no reasonably arguable ground to challenge the decision of the Judge to refuse leave to the 1^st Applicant to apply for judicial review.

20.  For these reasons, the 1^st Applicant’s appeal is dismissed.

21.  As for the 2nd Applicant, she is a child of tender age.  In Fabio Arlyn Timogan v Evan Ruth, Esq, [2020] HKCA 971, CACV 32/2020, this Court held that in some circumstances a lack of legal representation for child claimants in Board or court proceedings can result in procedural unfairness.

22.  Further, the Court held at [34] that the following principles apply in the cases of child claimants:

(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;  and

(c)  Ill-treatment which may not give rise to the level of persecution in the case of an adult may do so in the case of child.

23.  More recently, in Re Jasvir Singh [2021] HKCA 53, this Court explained how these principles would be applied on a case-by-case basis.  The relevant approach was set out at [31] to [33],

“ 31.  Second, 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.”

24.  This is the approach we would adopt in the present appeal.

25.  In the submissions of the applicants, reliance was placed on the Convention of Rights of Child (“CRC”)[5].  As a matter of Hong Kong law, an international treaty has to be incorporated into domestic law before it has the force of law in Hong Kong, see Lubiano Nacy Almorin v Director of Immigration [2020] 5 HKLRD 107.  The provisions under the CRC has not been incorporated into any statute in Hong Kong, see Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534 at [123] (CA); (2019) 22 HKCFAR 59 at [78] (CFA).  

26.  The applicants referred to Article 2 which proscribed discrimination in respect of the enjoyment of the rights in the CRC by each child within the jurisdiction.  There is no basis for contending that there is any discrimination against the 2^nd Applicant in Hong Kong.  The risk of discrimination in the Philippines had been duly considered by the Board.

27.  As far as we can see, the most relevant provisions in the CRC which may have a bearing in this appeal are Article 22 which requires the State Parties to take appropriate measures to ensure that a child seeking refugee status shall receive appropriate protection and humanitarian assistance and Article 12 which provides for the right of a child to be heard in judicial and administrative proceedings affecting him.  Even assuming that these provisions in the CRC are somehow relevant for mapping the development of common law in Hong Kong[6], we consider that the approach of Fabio Arlyn Timogan and Re Jasvir Singh is in line with the same.

28.  In our view, Fabio Arlyn Timogan cannot advance the 2^nd Applicant’s case in the present appeal.  It is clear from the Board’s decision that the Board assessed her claim separately from the 1^st Applicant.  In particular, the Board specifically considered the risk arising from her status of being born out of wedlock. 

29.  In our view, the Board had properly assessed the 2^nd Applicant’s claim and duly given reasons for rejecting the same.  There is nothing before us to indicate that the merits of her claims were not fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met.

30.  In such circumstances, we will follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Jasvir Singh [2021] HKCA 53 and Paglingayen Rosalyn Ringor [2021] HKCA 84 and dismiss the appeal of the 2^nd Applicant.

31.  In conclusion, the appeal by all the Applicants are dismissed.