RE ROMULO JENIFER DE GUZMAN AND ANOTHER

CACV 376/2022, [2023] HKCA 423

On Appeal From [2022] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 376 OF 2022

(ON APPEAL FROM HCAL NO. 2482 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal by the 1^st and 2^nd applicants against the decision of Deputy High Court Judge To (“the Judge”)  on 5 September 2022[1] refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  given on 24 October 2018 dismissing their appeal against the decision of the Director of Immigration (“the Director”)  dated 29 January 2018 which refused their non-refoulement claims. 

Background

2.  The 1^st and 2^nd applicants are mother and daughter.  The 1^st applicant is a national of the Philippines born in 1975 in Manila.  Out of her relationship with a person named Fritz Solorio (“Solorio”), she has four children in the Philippines.  She first entered Hong Kong in 2012 and was given permission to remain to work as a foreign domestic helper.  Her employment was prematurely terminated on 28 November 2015. 

3.  The 1^st applicant gave birth to the 2^nd applicant on 23 October 2015 in Hong Kong.  The 2^nd applicant’s father is an Indian man whom the 1^st applicant met in Hong Kong.  According to the 1^st applicant, he had returned to India last year and she is no longer in contact with him.  

4.  The 1^st and 2^nd applicants overstayed in Hong Kong, and surrendered to the Immigration Department on 26 September 2016.  They raised their non-refoulement claims on 3 November 2016.  Their claims were based on fear of being harmed or killed by Solorio, if they were to return to the Philippines, because the 1^st applicant’s relationship with the 3nd applicant’s father and has given birth to the 2^nd applicant.  The details of their claims are set out at [30] to [48] of the Board’s decision.

5.  In gist, the 1^st applicant claims that she met Solorio in 2000 in the Philippines.  They developed a close relationship, and their first child was born in 2002.  Thereafter, Solorio became abusive towards her physically and verbally.  She suffered physical injuries from his attacks. She also developed depression and became alcoholic after discovering that Solorio had an affair with another woman.  On one occasion in October 2003, Solorio assaulted her, causing fracture to her right arm.  Although she had complained to the community head, she later discontinued her case because Solorio promised to pay for her medical expenses.  In June 2004, after another argument with Solorio and upon the advice of her father, the 1^st applicant came to Hong Kong to visit her father.  After her return to the Philippines, she gave birth to her third and fourth child with Solorio in 2005 and 2007.  In 2012, she could no longer stand Solorio and came to Hong Kong to work as a foreign domestic helper.

6.  The 1^st applicant stated that she returned to the Philippines in July 2015 at a time when she was pregnant with the 2^nd applicant.  Solorio was angry on discovering her pregnancy.  He slapped and pushed her, causing her to have vaginal bleeding.  He further threatened to kill her and her baby.  The 1^st applicant returned to Hong Kong and has not seen Solorio since.   

The Director’s decision

7.  The 1^st and 2^nd applicants were represented by lawyer assigned by the Duty Lawyer Service in presenting their claims to the Director.  By a notice of decision dated 29 January 2018, the Director rejected both applicants’ claims having regard to the torture risk[2], persecution risk[3], BOR 3 risk[4] and BOR 2 risk[5] grounds.  The Director noted that the 2^nd applicant’s claim was based on the 1^st applicant’s claim, and assessed their claims jointly: see [2] of the Director’s decision.  In the case of the 1^st applicant, the Director found her behaviour inconsistent with a person who was genuinely in fear for her life, and her experience with Solorio did not seem to have affected her daily life.  As for the 2^nd applicant, the Director found that there was no indication that Solorio intended to harm her, and she had never been to the Philippines.  Considering the available Country of Origin Information (“COI”), the Director assessed that state protection was available to the applicants and they have viable alternatives to relocate within the Philippines.   

The Board’s decision

8.  The applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 25 June 2018 during which the 1^st applicant gave evidence with the assistance of a Tagalog interpreter.  By its decision dated 24 October 2018, the Board dismissed the appeal.

9.  In gist, the Board found the 1^st applicant’s account of her experience with Solorio to be vague, conflicting and confusing[6].  In particular, she gave inconsistent evidence and was evasive on a number of aspects of her case, including when she started cohabiting with Solorio,  when he became violent towards her, and her previous travel to Hong Kong to see her father[7].  The Board did not accept that Solorio had threatened and harmed her in July 2015 when she returned to the Philippines pregnant with the 2^nd applicant.  The Board was of the view that even if Solorio used to be violent towards the 1^st applicant, as they had by then been separated for 5 to 8 years, Solorio was in a relationship with another woman, and they had not been in contact for at least 3 years since the applicant came to work in Hong Kong in 2012, there was no plausible reason for Solorio to threaten and assault the applicant for having another relationship and being pregnant by another man.[8]   

10.  The Board did not accept there was a real chance or risk that Solorio would seriously harm or kill the applicants if they return to the Philippines.  The Board further noted that it was almost one year after the birth of the 2^nd applicant that the 1^st applicant sought non-refoulement protection, which casted doubts over the veracity of her claim and the genuineness of her fear[9].  The Board concluded that both applicants failed to satisfy the level of risk of harm required for non-refoulement protection.  

The Judge’s decision

11.  On 6 November 2018, the 1^st applicant filed a Form 86 on behalf of herself and the 2^nd applicant, for leave to judicially review the Board’s Decision.  In her supporting affidavit, she reiterated that her life was still in danger in the Philippines and asked the Court to review their case.  The applicants did not request for an oral hearing in either the Form 86 or the 1^st applicant’s affidavit. 

12.  By letter dated 18 February 2021, the Court invited the applicants to provide their first language, contact number and to submit all the documents they relied on in support of their application.  The applicants responded and indicated that they have no further supporting documents.  By a further letter dated 4 January 2022, the Court informed the 1^st applicant that, given the 2^nd applicant is a minor and should act by a next friend by a solicitor, she should seek legal representation in the proceedings.  At the appeal hearing, the 1^st applicant informed us that they did not apply for legal aid for the 2^nd applicant because at the time both of them had taken ill.  As there was no response from the applicants, the Judge proceeded to deal with the application. 

13.  By a Form CALL-1 dated 5 September 2022, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [22] to [25] of the Form CALL-1 as follows:

“22. The Applicants did not advance any grounds for judicial review in the Form 86. In the 1^st Applicant’s supporting affidavit, she only reiterated that her life is still in danger in the Philippines. The Applicants had been invited by the Court via its letter dated 18 February 2021 to advise the Court of their first language, telephone contact number and to file submissions. They responded and confirmed they had no submissions to make.

23. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to the Philippines. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to the Philippines. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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.

25.  The Board found the 1^st Applicant (on whose evidence the 2^nd Applicant’s claim depends)  incredible on the crucial issues of their risk of harm upon their return to the Philippines and rejected her evidence. Basically, the Applicants failed to discharge their burden of proving their fears and risks. It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely within the province of the Board, 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s application is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Hence, leave to apply for judicial review is refused.”

This appeal

14.  On 13 September 2022, the 1^st applicant filed a notice of appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision.  The notice of appeal stated the following as the grounds of appeal:

“We would like to reject and review the decision made by the Torture Claims Appeal Board. They disregard our dangerous situation.”

15.  On 19 September 2022, the Registrar of Civil Appeals drew attention to the fact that the 2^nd applicant is a minor and should act by a next friend who should act by a solicitor, and directed that steps be taken on her behalf including possibly an application for legal aid.  No application for legal aid was made for the 2^nd applicant.  In view of the inaction, the Registrar of Civil Appeals directed on 10 January 2023 that the appeal shall be proceeded with.

16.  Subsequently on 7 January 2023[10], the 1^st applicant lodged a written submission on behalf of herself and the 2^nd applicant.  Her arguments can be summarised as follows:

(1)  The Board’s Decision was misguided and has overlooked the situation in the Philippines, which led to its conclusion that her testimony was unreliable and untrustworthy. In particular, the Board and the Director have failed to take into account the cultural context of the Philippines. She provided COI to show that Philippines is fraught with extrajudicial killings as the country is run by a dictatorial president who had lost all accountability in the face of the public. Therefore, it would not be safe for them to return to the Philippines[11].

(2)  She and her daughter were deprived of legal assistance in the proceedings before the Board and before the Judge. As such, she was not able to elaborate her grounds for judicial review in the Form 86[12].

(3)  In relation to the situation with Solorio, she stated that he could still be angry at her for having a child with another man even though Solorio was in a relationship with someone else. She said the 2^nd applicant would be extremely vulnerable and they would be in danger if they return to the Philippines[13].

17.  At the appeal hearing, only the 1^st applicant was present and the 2^nd applicant was absent.  The 1^st applicant explained that she had agreed with the 2^nd applicant’s father the 2^nd applicant would be cared for by her.  Hence, she had registered the 2^nd applicant’s Hong Kong birth certificate with the Philippines authority, at a time when her own passport had not expired.  The 2^nd applicant is thus a national of the Philippines, as stated in Question 10 of the 2^nd applicant’s non-refoulement form (“NCF”).  The 1^st applicant confirmed that the 2^nd applicant’s claim was based solely on risks of harm from Solorio.  She added that if anything should happen to her after they return to the Philippines, the 2^nd applicant will be alone and not cared for.    

Relevant legal principles

18.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14], which include:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  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)  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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’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 the appeal were a fresh application for judicial review.

19.  In relation to children’s non-refoulement claims, the proper approach has been considered by this Court in Fabio Arlyn Timogan v Evan Ruth Esq Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & others [2021] HKCA 53.  We shall not repeat everything that has been said in those cases but will highlight the following:

(1)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children. Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child[14].

(2)  When dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation[15].

(3)  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 showing that there may be minor-specific grounds which had not been adequately advanced to the Board because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that the minor be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the Rule of the High Court, Cap. 4A.[16]

Our reasons for decision

(1)  The 1^st applicant’s appeal

20.  For the reasons set out below, we are of the view that the 1^st applicant’s appeal has no merits:

(1)  The Board did not accept the 1^st applicant’s factual account and found that it was implausible that Solorio would continue to threaten her after a lengthy period of separation.  It is within the power of the Board as primary decision maker to make these findings.  We agree with the Judge, for the reasons he gave (see [13] above), that the 1^st applicant’s assertion in his affidavit in support of the Form 86 that her life was still in danger is untenable.  Similarly, the 1^st applicant’s assertion in the notice of appeal that the Board had disregarded her situation cannot stand.  

(2)  The arguments in the written submission that the Board (and the Director)  failed to have regard to the cultural context of the Philippines in terms of the prevailing extrajudicial killings and the lack of accountability of the government are new arguments that had not been raised in the Court below.  Further, these arguments are wholly misplaced, especially considering that the Board had found her evidence unreliable and rejected her case that there were risks of harm from Solorio.

(3)  As to the complaint that due to lack of legal assistance, her ability to put forward her case before the Board and the Judge had been affected, we note that the applicants were legally represented in the screening process before the Director and the 1^st applicant had confirmed at the hearing before the Board that she had no further documents to add to the materials before it.  In her leave application for judicial review, she did not take any step to apply for legal aid despite being reminded by the court in the letter dated 4 January 2022.  Further, this Court has repeatedly held that the high standard of fairness does not mandate that a non-refoulement claimant should be provided with free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18].  It has also not been demonstrated what specific prejudice or unfairness had occasioned to the 1^st applicant by reason of her being unrepresented before the Board and the Judge. 

21.  Accordingly, we dismiss the 1^st applicant’s appeal.

(2)  The 2^nd applicant’s appeal

22.  The 2^nd applicant’s NCF was completed by the 1^st applicant with legal assistance.  It stated that the claim was based on the facts and risks submitted in the NCF of her mother, the 1^st applicant.  The Board’s decision was made before this Court’s decision in Fabio Arlyn Timogan.While the Board indicated that it has carefully considered the claims of the applicants based on all the materials before it, it did not explicitly state whether it had separately assessed the risk of harm of the 2^nd applicant.  Notwithstanding this, we are of the view that there is no procedural unfairness or proper basis to interfere with the Board’s decision on the 2^nd applicant’s appeal.  Our reasons are as follows:  

(1)  The 2^nd applicant’s claim is premised fundamentally on the 1^st applicant’s claim.  The 1^st applicant further confirmed at the appeal hearing that the only basis for the 2^nd applicant’s claim is the risk of harm from Solorio.  The Board correctly identified the issues for determination to be (i)  whether he 1^st applicant was subjected to violence from Solorio; (ii)  whether the applicants were at risk of any form of harm from Solorio if they returned to the Philippines; and (iii)  whether such harm might be avoided by the applicants relocated to a different area in the Philippines.[17]  The Board concluded that there was no real risk that both applicants would be seriously harmed or killed by Solorio, given the long lapse of time, Solorio has formed a relationship with another woman, his lengthy separation from the 1^st applicant and the fact that they had not been in contact since 2015.  As noted above, we agree with the Judge that there was no basis to interfere with these findings made by the Board.  In light of the Board’s findings, there is no factual basis to support the 2^nd applicant’s claim.

(2)  On the facts and evidence in the case, there is no 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 on her behalf.  Although the 2^nd applicant was born outside the Philippines and has never been to the Philippines, her birth had been registered with the Philippines authority and she has attained the status of a national of the Philippines.  The 1^st applicant also indicated that, other than risks of harm from Solorio and that the 2^nd applicant would be alone if anything should happen to her, she does not have other concerns for the 2^nd applicant if she were to go to the Philippines with her.

(3)  In the circumstances, the Judge is correct in holding that the 2^nd applicant’s intended judicial review is not reasonably arguable.   

23.  Accordingly, we dismiss the 2^nd applicants’ appeal.

24.  Notwithstanding that the 2^nd applicant’s appeal has not been brought by a next friend acting by a solicitor as required under Order 80 rule 2 of the Rules of the High Court, we will treat the non-compliance as a mere irregularity without rendering the 2^nd applicant’s appeal a nullity: see Zoraydah & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office & another [2020] HKCA 442, at [8]; and Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435, at [40].

Order

25.  For the above reasons, the 1^st and 2^nd applicants’ appeal is dismissed.