RE HATULAN AILYN DEL ROSARIO AND ANOTHER

CACV 239/2024, [2025] HKCA 779

On appeal from [2024] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 239 OF 2024

(ON APPEAL FROM HCAL NO. 530 OF 2023)

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J U D G M E N T

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

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 30 May 2024[1] refusing to grant them leave to apply for judicial review against the decisions dated 30 January 2023 and 18 August 2023 of the Torture Claims Appeal Board (“the Board”)  dismissing their respective appeals against the decisions dated 21 February 2022 and 23 December 2022 of the Director of Immigration (“the Director”)  which rejected their claims for non-refoulement protection.

2.  The 1^st applicant on behalf of herself and the 2^nd applicant have consented on 12 June 2024 for the appeal to be determined on the papers without an oral hearing.  She has also lodged a written submission to support their appeal.

The applicants’ claim

3.  The 1^st and 2^nd applicants are mother and son. The 1^st applicant is a national of Philippines aged 42. She last entered Hong Kong as a visitor on 20 November 2016 and had overstayed since 5 December 2016. On 15 November 2021, she surrendered to the Immigration Department and lodged a non-refoulement claim. On 31 December 2021, she gave birth to the 2^nd applicant in Hong Kong and made a non-refoulement claim on his behalf on 11 and 20 October 2022.

4.  The applicants’ claims are based on the fear that if they returned to the Philippines, they would be harmed or killed by the 1^st applicant’s boyfriend (“Ramil”)  because of the 1^st applicant’s subsequent relationship with the father of the 2^nd applicant (“Ace”). The details of their claims were set out at [21] to [26] and [15] to [40] respectively of the Board’s first and second decisions. 

5.  In gist, the 1^st applicant has an elder son of around 19 years old in the Philippines. In 2006 to 2012, she worked in Hong Kong as a foreign domestic helper and as a waitress from 2012 to 2016. In 2012, she married a Filipino resident in Hong Kong, but separated from him in March 2014. During her holiday in the Philippines in 2015, she met Ramil, who was a tricycle driver in his forties, and developed a relationship. After her return to Hong Kong, she met and had a relationship with Ace and gave birth to the 2^nd applicant in Hong Kong on 31 December 2021.  Ramil discovered her relationship with Ace from her Facebook posts and called her, threatening to kill her if she returned to the Philippines. He called her persistently and threatened her with Facebook messages. According to the 1^st applicant, Ramil did not know about the birth of the 2^nd applicant. The applicants did not avail themselves of the protection of the police because the police are corrupt. The 1^st applicant claimed that Ramil is a drug dealer and has the means and connections to locate them within the country.

The Director’s and the Board’s decisions

6.  By two decisions dated 21 February 2022 and 23 December 2022, the Director rejected the 1^st and 2^nd applicants’ respective claim on the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.  

7.  The applicants appealed the Director’s decisions to the Board. The 1^st applicant attended an oral hearing of her appeal on 19 October 2022.  On 21 May 2023, she attended another oral hearing before a different Board on behalf of the 2^nd applicant.  The two Boards issued their decisions on 30 January 2023 and 18 August 2023.  Both applicants’ appeals were dismissed.

8.  In the decision on the 1^st applicant’s appeal, the Board accepted that the 1^st applicant had relationships with Ace and Ramil, and that the 2^nd applicant was the child of Ace[6]. However, the Board did not accept, having assessed her evidence, that Ramil has threatened her with harm, whether in person, over the phone or via Facebook messages due to her relationship with Ace or for any other reason, on the basis that her account was vague, inconsistent and devoid of any particulars[7]. The Board did not accept that Ramil, whom the 1^st applicant merely had a faint acquaintance, would behave as proprietorially towards her and would suddenly emerge and approach her family in 2021, which was five years after she left the Philippines[8]. The Board also considered that the evidence and the 1^st applicant’s immigration history suggested that she was highly motivated to remain in Hong Kong to work, independent of any claimed risk of being harmed in the Philippines, and this raised serious doubts as to the existence of the risk claimed by her[9].  For these reasons, the Board concluded that the 1^st applicant had failed to satisfy the level of risk of harm as well as the requirements for affording non-refoulement protection[10].

9.  In the decision on the 2^nd applicant’s appeal, the Board, which was constituted by a different adjudicator, was mindful of the fact that the 2^nd applicant was a minor and had considered the grounds specific to his claim. The Board found no evidence to suggest that Ramil was aware of the existence of the 2^nd applicant, and even if Ramil was aware of it, there was no evidence to show that Ramil would harm or even kill a child simply out of his hatred towards the 1^st applicant[11]. The Board also noted that on the 1^st applicant’s account, Ramil has never threatened the 1^st applicant’s son in the Philippines[12]. Further, the Board assessed on the basis of the available country of origin information (COI)  that the 2^nd applicant and his mother would have access to the resources, support and benefits provided by government and non-governmental organisations dedicated to promoting the welfare of single parents and their children in the Philippines, as well as the protection by the police where reforms are in place to improve the effectiveness of the police force[13]. The Board further assessed that the 1^st applicant would have no difficulty surviving and supporting her son upon their return to the Philippines, given her education background and work experience. There is no evidence to suggest that Ramil has the resources to locate them within the vast and populous country. As such, internal relocation is a viable option for the applicants. For these reasons, the Board was not satisfied that the 2^nd applicant has established entitlement to non-refoulement protection under any of the applicable grounds. 

The Judge’s decision

10.  By a Form 86 dated 3 April 2023, the 1^st applicant applied for leave to judicially review the Board’s decision dated 30 January 2023.

11.  By her affidavit dated 29 September 2023, the 1^st applicant applied to add the 2^nd applicant as the second applicant and to apply for leave to judicially review the Board’s decision dated 18 August 2023.  By his order made on 1 December 2023, the Judge allowed the application[14]. 

12.  No grounds for seeking relief were put forward by the 1^st applicant for herself or on behalf of the 2^nd applicant.

13.  The Judge held an oral hearing on 6 March 2024, which was attended by the applicants. By a Form CALL-1 dated 30 May 2024, the Judge refused both applicants’ application for leave to judicially review the Board’s decisions.  He found the intended judicial review to have no prospect of success for the reasons he gave at [28] to [33] as follows:

“28. 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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

29. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she wants extension of time to stay in Hong Kong for the benefit of her son. The father of her son is also a national of the Philippines. He is making his own refoulement claim. I specifically asked the 1^st applicant if her son returns to the Philippines, whether there will be any child specific issues that she wants the Court to take into consideration. She said that her son will be exposed to the same risks as she will.

30. 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.”

31.  In respect of the 1^st applicant, the Board accepted her relationship with Ramil, her new boyfriend and her son. However, the Board rejected her evidence that Ramil had threatened her.  Therefore, she will not be subjected to any harm from Ramil if she returns to the Philippines.

32.  It is obvious that the 2^nd applicant’s claim was separately considered by another Board.  This Board found that the 1^st applicant does not have any real risk of harm from Ramil. It dismissed the 2^nd applicant’s appeal.

33.  The applicants have raised no valid reasons to challenge the respective Boards’ Decisions.  They therefore fail to show that they have any realistic prospect of success in their proposed judicial review of the Boards’ Decisions.”  

This appeal

14.  On 12 June 2024, 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 did not set out any specific ground for challenging the Judge’s decision.

15.  On 13 June 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and was required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on her behalf, including possibly an application for legal aid, to rectify the position. The 1^st applicant made a legal aid application on the 2^nd applicant’s behalf. The Director of Legal Aid refused the application on 3 January 2025. No further action was taken on behalf of the 2^nd applicant pursuant to Order 80 rule 2 of the Rules of the High Court, Cap. 4A. On 13 January 2025, the Registrar of Civil Appeal directed that the appeal be proceeded with.

16.  On 27 January 2025, the 1^st applicant lodged written submissions on behalf of herself and the 2^nd applicant. In the written submissions, the 1^st applicant repeated the basis of their claims and stated that, if repatriated to the Philippines, she feared Ramil would harm them as she has no money to repay the allowances he previously gave her when she left the Philippines for Hong Kong. She also feared that Ramil would be able to locate them given his connections as a drug dealer.

Our reasons for decision

17.  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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

18.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  In relation to the 1^st applicant’s appeal, neither the Notice of Appeal nor the written submissions has identified any error in the Judge’s decision or the reasons he gave for his decisions. The submissions simply repeat the basis of her claimed fear, which does not amount to viable grounds for the Court of Appeal to intervene with the Judge’s decision.

20.  Further, assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers. The Court in a judicial review may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair. The 1^st applicant had not put forward any such ground to support her intended judicial review.  

21.  Moreover, the Board found the 1^st applicant’s evidence vague, inconsistent and not credible; and did not accept that the threats and harm from Ramil existed.  These findings are within the purview of the Board. On the materials before the court, there is no proper basis to say that its conclusions are wrong or irrational.  The 1^st applicant has failed to show here intended judicial review has any prospect of success. 

22.  For the above reasons, the 1^st applicant’s appeal has no merits and should be dismissed.

23.  In the case of the 2^nd applicant’s appeal, we are mindful of the fact that he is a minor and has not been legally represented in the proceedings below and in this Court, as required by Order 80 rule 2 of the Rules of the High Court. We have examined the Board’s Decision with particular regard to his case in light of the need to separately consider whether his claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to the lack of legal representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33]. 

24.  In the present case, the 2^nd applicant’s claim was considered by the Board at a separate hearing constituted by a different adjudicator, and addressed in a separate decision. The factual basis of his claim was premised fundamentally and entirely on his mother’s claim. It was asserted on his behalf that he would be harmed or killed by Ramil as he was the son of another man.  The Board rejected the 1^st applicant’s evidence on Ramil’s threats, which is a core aspect of both her and the 2^nd applicant’s claim.  There is thus no factual basis to support the 2^nd applicant’s claim on the risk of harm.

25.  Moreover, the Board was keenly aware of the fact that the 2^nd applicant was a minor and has separately assessed the non-refoulement grounds specific to his claim, namely the likelihood of him being harmed by Ramil due to his hatred towards the 1^st applicant and whether there are means to protect children of single parents in the Philippines. The Board assessed that the perceived risk of harm would not materialise as the existence the 2^nd applicant was not even known to Ramil. The Board found no evidence to suggest that Ramil would harm the child of the 1^st applicant simply because he was not the father of the child, or that he would harm the child out of his own hatred towards the 1^st applicant. The Board also found on the basis of credible COI that resources designed to protect the welfare of children and single parents are available to the applicants.  The Board further found that internal relocation options are available and viable in light of the work experience and education background of the 1^st applicant.  As noted above, the applicants have made no challenge to these assessments and findings.  

26.  We have given careful consideration to whether, due to the absence of legal representation for the 2^nd applicant at the stage of the proceedings before the Board, there were matters that might provide a basis for a claim specific to him as a child which had not been advanced or properly advanced before the Board. We can see none; nor has the 1^st applicant suggested any other than those already canvassed before the Board.  

27.  In the circumstances, we agree that the 2^nd applicant’s intended judicial review has no prospect of success and the Judge did not err in refusing his application for leave to apply for judicial review.

28.  Accordingly, we treat the non-compliance with Order 80 rule 2 of the Rules of the High Court and the 2^nd applicant’s lack of legal representation as a mere irregularity without rendering his appeal a nullity: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  As the 2^nd applicant’s appeal has no merits, it falls to be dismissed.

Disposition

29.  For the reasons above, we dismiss the appeal of the 1^st and 2^nd applicants.