RE SALDANA NOEMA WALOHAN AND OTHERS

CAMP 411/2021

[2022] HKCA 1764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 411 OF 2021

(ON INTENDED APPEAL FROM HCAL NO 1450 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 20 May 2021[1] refusing 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 (“Board”) dated 9 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 2 February 2017 rejecting the applicants’ non-refoulement claims.

Background

2.  The 1^st Applicant is a Philippine national born in 1982.  She came to Hong Kong for employment as a domestic helper and was last permitted to remain until 27 December 2015 or two weeks after termination of contract, whichever was earlier.  Her employment contract came to an end on 12 May 2015 at her own instigation as she had found out that she was pregnant from a relationship with a Ghanian man in Hong Kong named Ernest Owuso Asare, whom she married subsequently on 28 September 2016.  The 1^st Applicant did not depart after the termination of her contract, and overstayed.  Her sons, the 2^nd and 3^rd Applicants, were born in Hong Kong on 27 September 2015.  Together the Applicants surrendered to the Immigration Department on 12 January 2016.  They first requested non-refoulement protection on 28 April 2016.  Each of them lodged a Non-refoulement Claim Form on 22 December 2016.  They had legal representation in making their claims to the Director.

3.  The Applicants’ claims were based on the fear that, if they returned to the Philippines, they would be harmed or even killed by the 1^st Applicant’s father.  According to the 1^st Applicant, her father tried to sexually assault her in 1997.  She left the family and worked as a domestic helper in the Philippines. She became pregnant in 2004 with her boyfriend and gave birth to a son.  She said that in 2016, when she was talking to her mother on the phone, her father grabbed the phone, made threats and swore at her.  The detailed contents of their claims was summarized at [30] to [32] of the Board’s decision.

4.  By notice of decision dated 2 February 2017, the Director assessed the Applicants’ claims on all applicable grounds and decided against them.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The Applicants appealed to the Board against the Director’s decision.  They were late but the late filing of the appeals was allowed by the Board.  An oral hearing was held on 10 April 2018, during which the 1^st Applicant gave oral testimony and also spoke on the 2^nd and 3^rd Applicants’ behalf.  They were not legally represented before the Board.

6.  The Board noted that the 1^st Applicant’s father had never physically harmed her, and only tried to molest her many years ago when she was only 14.  Given the lack of any violent behaviour towards the 1^st Applicant in the past, the Board did not accept that her father would pose any physical harm to her despite the threats over the phone.  During the hearing, the 1^st Applicant also indicated that there had been reconciliation of sorts within the family, and that she would be accepted by her family in the Philippines once they saw her children, but that she wanted herself and her children to stay where her husband was as she did not want them to be separated as a family.  In the end, having considered their claims “both individually and cumulatively”, the Board was not satisfied that there was more than a remote prospect of the Applicants experiencing any serious or significant harm if they returned to the Philippines.  As a result, the Board rejected the Applicants’ claims and found that there was no real risk of harm to them in the event of refoulement. 

Decisions of the court below

7.  On 24 July 2018, the 1^st Applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In a letter exhibited to her supporting affirmation, the 1^st Applicant stated that they feared that her father would kill her and her two sons because of the dishonour she brought to her family by giving birth to her sons in Hong Kong.  She also stated that she was eight months pregnant at the time and this would increase the danger to her life.

8.  The Applicants applied for but was refused legal aid in 2018.  Noting that the Form 86 had been filed by the 1^st Applicant in her own name only, the Judge caused enquiries to be made, whereupon the 1^st Applicant confirmed that she would like to have her two sons added as applicants as well.  The Judge therefore made the amendments, adding the sons as the 2^nd and 3^rd Applicants.  Following consideration of the documents only, on 20 May 2021 the Judge refused to grant the Applicants leave to apply for judicial review.  His reasons were set out at [12] – [17] of the Form CALL‑1 as follows:

“ 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^[6] 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.”

9.  The Applicants did not lodge an appeal within the 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).  Three months later, they filed a summons in the Court of First Instance seeking extension of time to appeal.  In the summons it was said that they had changed their address but did not know that they should inform the court, as a result of which they did not get the decision.

10.  On 23 September 2021, the Judge issued his decision refusing to extend time for the reason that there was no realistic prospect of success in the intended appeal.[7]

Application to this Court

11.  By summons filed in this court on 27 September 2021, the Applicants renewed their application for extension of time to appeal against the Judge’s refusal of leave to apply for judicial review.  In the summons and supporting affidavit, the 1^st applicant did not set out any intended grounds of appeal, but merely stated that as a female, she would face danger and further abuse should she return to the Philippines. 

12.  The Applicants applied for legal aid, but were again unsuccessful.  At one stage, the solicitors firm of Patricia Ho & Associates acted for the Applicants on a pro bono basis “on their immigration matter” but not in the application for extension of time under consideration, and requested the Official Solicitor to represent the 2^nd and 3^rd Applicants.  The Official Solicitor, having obtained and reviewed the papers, declined to do so, taking the view that they did not have reasonable prospects of success in the intended appeal.

13.  Despite the directions of the Registrar of Civil Appeals including an unless order made on 13 May 2022, the Applicants had not lodged any written submissions in support of their application for extension of time to appeal.  We shall accordingly determine the application on the basis of the available materials.  Pursuant to Order 59 rule 14A, we consider it appropriate to deal with this application on paper without an oral hearing.

Discussion

The 1^st Applicant

14.  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].

15.  The applicant’s delay of three weeks was substantial.  She also failed to provide any reason, let alone good reason, for her delay.  Accordingly, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

16.  In assessing the merits of the appeal, we shall 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]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, 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, procedural unfairness or irrationality in the decision of the Board.  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.

17.  In the present case, the Board rejected the 1^st Applicant’s claim for non-refoulement protection based on its assessment that, even on the 1^st Applicant’s own case, there was no real risk of her father actually inflicting physical harm on her and her children.  As such, the Board concluded that there was no real risk of harm in the event of refoulement.  Such assessment is a matter for the Board, from which there is no avenue for further appeal.  For the purposes of the intended judicial review application, the 1^st Applicant has not been able to point to any public law wrong vitiating the Board’s decision.

18.  The 1^st Applicant has also failed to point to any error in the Judge’s decision in refusing to grant her leave to apply for judicial review.  Accordingly, the 1^st Applicant’s appeal must be dismissed.

The 2^nd and 3^rd Applicants

19.  As observed by the Judge, the proper approach to children’s non‑refoulement claims 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.  The relevant passages have been set out by the Judge in his decision, as quoted above.

20.  The 2^nd and 3^rd Applicants were born in September 2015 and were plainly so young that they could not make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.[8]

21.  The Board did note that the Applicants’ claims had to be considered separately, and expressly considered their claims “both individually and cumulatively”.  It is clear, however, that the 2^nd and 3^rd Applicants’ claims were based on those of their mother, and that there was no separate substantive claim of their own that was advanced.  As such, given that the 1^st Applicant’s appeal was dismissed, the Board naturally also dismissed the 2^nd and 3^rd Applicants’ appeal.

22.  As set out above, the Judge took the view that there was no relevant child-specific risk to consider, and therefore treated the lack of legal representation of the 2^nd and 3^rd Applicants before the Court as a mere irregularity that did not vitiate the entire proceedings.

23.  We have ourselves considered the 2^nd and 3^rd Applicants’ position carefully.  The 1^st Applicant did not suggest that her sons would face any risk of harm other than that based on her claim about the threats from her father.  There is no reason to think that simply being a mixed-race child will in itself bring risk of harm of the relevant kind on the 2^nd and 3^rd Applicants in the Philippines.

24.  Accordingly, there being no conceivable reason to think that the 2^nd and 3^rd Applicants could raise any reasonably arguable ground for judicial review of the Board’s decision, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss the application for extension of time of the 2^nd and 3^rd Applicants, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court, in that they have not acted by a next friend acting by a solicitor, as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

25.  For the above reasons, the Applicants’ applications are dismissed.