DEL MONTE MA MERCEDES DOLORSO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 279/2022

[2025] HKCA 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2022

(ON APPEAL FROM HCAL NO. 305 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

1.  On 21 July 2022, the Applicants, who are acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 8 July 2022 (“the Order”)  refusing to grant leave to the Applicants to apply for judicial review of the second decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 5 October 2018. The Board dismissed the Applicants’ appeal against the further decision of the Director of Immigration (“the Director”)  dated 25 January 2017.

2.  Despite the directions of the Registrar of Civil Appeals of 21 November 2022 to the Applicants, the Applicants failed to lodge skeleton argument by the stipulated time of 9 January 2023 and accordingly, we will deal with this appeal on paper without an oral hearing. 

BACKGROUND

3.  The 1^st Applicant is a national of the Philippines.  She entered Hong Kong in November 1999 to work as a foreign domestic helper.  She illegally overstayed after her contract was prematurely terminated on 16 June 2003 and was arrested on 26 January 2007.  On 7 October 2008, she gave birth to her daughter, the 2^nd Applicant. 

4.  The Applicants had previously made a claim for the risk of torture[1], which was rejected by an immigration officer on 4 July 2011.  They lodged a petition to the Chief Executive against the decision of the immigration officer and the petition was refused by the then Petition Team.  The Applicants then raised a claim under BOR 3 risk[2] and persecution risk[3], which was rejected by the Director in their Notice of Decision dated 12 November 2014.  Their appeal against the Director’s decision was dismissed by the Board dated 10 July 2015 (“the Board’s First Decision”). 

5.  The 1^st Applicant’s case is that, if refouled, she would be harmed or killed by her husband.  She also feared her paternal uncle because of his membership in the New People’s Army (“NPA”), and for being an embarrassment to her family as she had given birth to the 2^nd Applicant with another man out of wedlock.  Details of the Applicant’s claim were summarised by the Judge at §§1-11 of the CALL-1 Form. 

6.  By a letter dated 4 January 2017, the Applicants were invited by the immigration officer to submit additional facts, if any, which they considered relevant to the non-refoulement claim on all applicable grounds, including any other absolute and non-derogable rights under BOR 2 risk[4].  After considering the Applicants’ submissions, by a Notice of Further Decision dated 25 January 2017, the Director rejected their claims under the BOR 2 risk ground. 

7.  The Applicants appealed the Director’s further decision to the Board.  On 5 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s further decision (“the Board’s Second Decision”). 

8.  In considering the Applicants’ BOR 2 risk ground, the Board held that the Applicants were not at risk.  This was because the 1^st Applicant’s feared harm arose from her personal or private dispute with her husband or from her uncle or NPA against which the Philippines government took a hard line. 

THE JUDGE’S DECISION

9.  On 1 February 2019, the Applicants filed a Form 86 against the Board’s Second Decision but not against the First Decision.  The Judge found that the Applicants’ application was almost one month late and was deemed to include an application for extension of time. 

10.  On 8 July 2022, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“2. In AW and Director of Immigration , the Court of Appeal held that the following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time: (1)  length of delay; (2)  explanation for the delay; (3)  merit of the substantive application; (4)  prejudice to the respondent if extension of time was granted; and (5)  whether the application raises any question of general public importance and whether those questions are likely to have to be resolved by the courts in any event. Though the delay was long, having regard to the particular facts of this case and the fact that the 2^nd Applicant is a minor, this Court was prepared to give more weight to merit of the substantive application. If there is merit, this Court was prepared to condone the delay.

…

52. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s understanding of the law and key legal principles relating to the BOR 2 Risk ground, the burden of proof and standard of proof is correct; and it observed a very high standard of fairness. It correctly identified the factual and legal issues involved in the claim.

53. The Applicants’ claim is founded on the 1^st Applicant’s feared harm from her husband and from the NPA which had been finally decided by the Board in its 1^st Decision. They raised two further grounds based on the 2^nd Applicant’s language problem and the current political situation in the Philippines. The 2^nd Applicant has no separate ground specific to herself other than her language problem. Her claim hinges on the 1^st Applicant's. The Board carefully considered those grounds and the COI advanced by the Applicant. It rejected them as it found there was no factual basis to support the Applicants’ claims for non-refoulement protection under BOR 2 Risk ground. This is a finding of fact.

54. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge their burden of proving their fears and risks. These are finding of facts which are exclusively 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. There were no such vitiating elements in the Decision. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

55.  For the above reasons, it would be futile to grant extension of time to file the application.  The Applicants’ application for leave to apply for judicial review was refused.”

THIS APPEAL

11.  In their Notice of Appeal dated 21 July 2022, the Applicants put forward that they would like to reject and review the decision made by the court and the Board as they disregard their dangerous situation.

DISCUSSION

1^st Applicant

12.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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’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(6)). 

13.  Further, 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.  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: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case. 

14.  The 1^st Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 8 July 2022, and has failed to raise any viable ground of appeal against the Order. 

15.  The 1^st Applicant’s appeal has no merits, and is dismissed. 

2^nd Applicant

16.  The 2^nd Applicant is a minor claimant and daughter of the 1^st Applicant.  The Court’s approach in considering the claim is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  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 circumstance of each claimant;

(2)  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;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

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.”

17.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the claim of her mother, the 1^st Applicant. 

18.  Having considered the above, we do not see any 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 before the Board. 

19.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity. 

DISPOSITION

20.  The Applicants’ appeal has no merits, and is dismissed.