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HCAL 708/2019
[2022] HKCFI 2928
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 of 2019
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Vocal Lorelie Baldosano |
1st Applicant |
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Dumagsa Mark Lawrence |
2nd Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
1. Extension of time for the Applicants to apply for leave to apply for Judicial Review be refused; and
2. The joint application for leave to apply for Judicial Review be dismissed;
Observations for the Applicants:
THE APPLICATION
1. The 1st applicant is the mother of the 2nd applicant, who was born in Hong Kong on 10 June 2015 and is about 7 years old. This is their joint application. The 2nd applicant’s application relies upon the facts of the 1st applicant. The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 26 May 2017 (the “Board’s Decision”). Their application filed on 13 March 2019 is late.[1] This issue will be dealt with below.
2. The applicants include a minor, therefore, a date was fixed for the applicants. However, the applicants were absent without prior notice to Court. Their joint application will therefore be considered on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
4. The 2nd applicant is a minor. The 1st applicant is his guardian ad litem and she is not legally represented. This issue will also be dealt with below.
The applicants
5. The applicants are nationals of the Philippines. 1st applicant worked in Hong Kong as a foreign domestic helper and her last employment contract was prematurely terminated on 6 February 2013. She was required to leave on or before 20 February 2013. She did not depart and had overstayed since 21 February 2013. On 3 January 2014, she was arrested by the police for overstaying. On 13 January 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Jose Angelo Vocal.
6. On 10 June 2015, the 1st applicant gave birth to the 2nd applicant in Hong Kong. She also lodged a non-refoulement claim on his behalf. The 2nd applicant’s claim was made on the same factual basis as that of the 1st applicant.
7. According to the 1st applicant, she married Jose in 1994. From 1994 to 1998, the couple had verbal disputes for monetary problems and Jose’s drug problem. During the arguments, Jose would damage the valuable items at home and, on one occasion, locked the 1st applicant for a whole day. The verbal disputes continued from 1999 to 2008. In August 2010, Jose once got drunk and hit the 1st applicant’s father. Later, in November 2011, when the 1st applicant returned home after her overseas employment and inquired with Jose about why he sold the valuable items at home, Jose attempted to assault her with an axe. Thereafter, the couple signed a separation agreement. Afterwards, from 2011 to 2013, Jose continued to send the threatening phone messages to the 1st applicant. Out of fear, the 1st applicant decided to stay in Hong Kong for protection.
8. Insofar as the 2nd applicant’s claim was concerned, the 1st applicant added that he would also be harmed or killed by Jose.
9. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 7 January 2015 by the Director for the 1st applicant (“Director’s First Decision for A1”) and paragraph 6 of the Notice of Decision dated 7 April 2016 by the Director for the 2nd applicant (“Director’s First Decision for A2”).
The Director’s Decisions
10. The Director considered their claims in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
11. The Director assessed the applicants’ claims separately.
12. Insofar as the 1st applicant’s claim was concerned, by way of the Director’s First Decision for A1, the Director dismissed her claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) state protection would be available to her [13]; and (iii) internal relocation was a viable alternative [14]. In the Notice of Further Decision dated 7 March 2017 for the 1st applicant, the Director also dismissed her claim on BOR 2 risk (the “Director’s Second Decision for A1”).
13. For simplicity, the Director’s First Decision for A1 and the Director’s Second Decision for A1 will be referred to collectively as “the Director’s Decisions for A1”.
14. As to the 2nd applicant, by way of the Director’s First Decision for A2, the Director also dismissed his claim on Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) the 2nd applicant was born in Hong Kong and he had not been to the Philippines before and there was no evidence that he had ever received any ill-treatments from Jose [15]; (ii) the past events suggested that Jose had no real intention to harm or even kill the 1st applicant or her children, not to mention the 2nd applicant who Jose had never seen before [16]; (iii) state protection would be available to him [17]-[20]; and (iv) internal relocation with the 1st applicant was a viable option [21]-[27]. In the Notice of Further Decision dated 28 March 2017 for the 2nd applicant, the Director also dismissed his claim on BOR 2 risk (the “Director’s Second Decision for A2”).
15. For simplicity, the Director’s First Decision for A2 and the Director’s Second Decision for A2 will be referred to collectively as “the Director’s Decisions for A2”.
The Board’s Decision
16. The applicants appealed their respective Director’s Decisions to the Board. On 27 April 2017, the Board conducted an oral hearing for their appeals, during which the 1st applicant gave evidence for herself and on behalf of the 2nd applicant.
17. The Board noticed that, on the 1st applicant’s own evidence, there was only one incident which Jose attempted, but failed, to assault the 1st applicant with an axe. She sustained bruises in the scuffles. On the previous occasions, the parties only quarreled and the 1st applicant did not sustain injuries [23]. After Jose sent her the threatening messages, 1st applicant ceased contact with him in around 2012 or 2013 when she changed her phone number [24]. Meanwhile, on the evidence given by the 1st applicant, the Board noted that the 1st applicant had not returned since 2011 and the text messages from Jose stopped in 2012 or 2013. The applicants could relocate to areas that were far from Jose. As a result, the Board concluded that, on her own evidence, she and her son would not face any risk of harm, if refouled [25].
18. For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.
Application for leave to apply for judicial review
19. The 1st applicant filed Form 86 dated 13 March 2019 for leave to apply for judicial review of the Board’s Decision.
20. The 1st applicant filed her affidavit in support of their joint application. She said she rejects the Board’s Decision as they disregarded her dangerous situation.
DISCUSSION
21. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
22. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
23. 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.
24. It is clear that the Board had treated the applicants’ claim as a composite claim. The Court of Appeal 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 held that the applicants’ claim should be separately considered as there might be child specific not brought to the Board’s attention. This issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application.
25. The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 1121, Hon. G Lam and Chow JJA, 3 August 2022, following the practice in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, held:
“22. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, found the 1st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2nd Applicant’s claim on any of the applicable grounds.
23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.
24. In the premises, we also find that the 2nd Applicant’s intended judicial review is not reasonably arguable.”
26. The present case is similar to the above cases as the Board found that the 1st applicant’s alleged fear of harm from Jose does not exist and relocation is a viable alternative for the applicants. Devoid of the facts of the 1st applicant, there is no substance in the 2nd applicant’s application and I fail to see any child specific, which should have been brought to the Board’s consideration, had not been done so. I therefore find that there is no realistic prospect of success in the applicants’ intended judicial review of the Board’s Decision.
CONCLUSION
27. In the circumstances, I treat non-legal representation of the 2nd applicant as procedural irregularity under Order 2 of the RHC. I therefore refuse to extend time for the applicants to apply for leave to apply for judicial review. Accordingly, I dismiss their joint application.
Dated the 22nd day of September 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicants
on 22 September 2022
Vocal Lorelie Baldosano
Dumagsa Mark Lawrence
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors
on 22 September 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 780/15/1/131/F26;
USM 3495/16/4/103/F216
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 9000348/17; QA T/C 811/14 (Formerly RBCZ 1235/14) and
RBCZ 9000878/17; QA T/C 2216/15 (Formerly RBCZ 475/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
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