CORDOVAL MYRNA BENIASEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 486/2020

[2021] HKCA 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 486 OF 2020

(ON APPEAL FROM HCAL NO 265 OF 2018)

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J U D G M E N T

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

1.  This is the applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan on 23 July 2020[1]. By his decision, the judge refused to extend time for the applicants to seek leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  concerning their non-refoulement protection claims.

Background

2.  The 1^st applicant is a national of the Philippines.  She is 44 years old.  She last entered Hong Kong on 11 March 2009 with permission to stay here as a domestic foreign helper until 23 July 2010 or two weeks after termination of contract, whichever was earlier.  On 17 June 2020, her employment contract was terminated.  She overstayed and was later arrested, convicted and imprisoned for three months for breaching condition of stay.  After she was released from prison, a removal order was made against her on 31 January 2012.

3.  The 1^st applicant initially made a torture claim[2], claiming that she feared she would be killed by creditors if she were to return to the Philippines.  The torture claim was rejected by an immigration officer on 25 May 2012.  The 1^st applicant did not challenge this decision but, in September 2013, sought non-refoulement protection on the same basis.

4.  Whilst released on recognizance pending the determination of her non-refoulement claim, the 1^st applicant formed a relationship with a Pakistani man (“the Alleged Father”).  She gave birth to a daughter on 18 October 2013, who is the 2^nd applicant in these proceedings.  She claimed to the Director of Immigration (“the Director”)  that the Alleged Father was a former torture claimant in Hong Kong and had been deported from Hong Kong by the time the 2^nd applicant was born.  In September 2014, the 1^st applicant submitted a non-refoulement claim on behalf of her daughter.  Their claims were assessed jointly.

5.  Broadly speaking, the applicants raised three grounds in support of their non-refoulement claims:

(a)  First, it is said that if the applicants were to return to the Philippines, they would be harmed by one Rod Alonso (“RA”)  and his brother (“Alonso”)  who was a policeman for failing to repay a loan taken out by the 1^st applicant and her cousin Oyto Beniasen (“OB”).  On 18 June 2011, OB was shot dead while driving his taxi and the 1^st applicant believes that the killing was done by RA or Alonso.  The 1^st applicant feared that they would kidnap her daughter even if the applicants were to stay in other cities in the Philippines.

(b)  Second, it is said that the 1^st applicant’s family was angry at her and had cut off contact with her for having an affair with another man.  The applicants had no place to live in the Philippines as her relatives and friends had stopped contacting her and did not accept the 2^nd applicant.

(c)  Third, it is said that the Alleged Father wanted to bring the 2^nd applicant back to Pakistan and raise her as a Muslim.  The applicants feared that the Alleged Father would bribe the police in the Philippines so that he could kidnap the 2^nd applicant when they returned to the Philippines.

The Director’s decision

6.  By a Notice of Decision dated 12 March 2015, the Director rejected the applicants’ non-refoulement claim on grounds including torture risk[3], BOR 3 risk[4] and persecution risk[5]. 

7.  The Director found, among other things, that 1^st applicant had never been harmed by RA or Alonso; that there was no evidence to indicate that OB’s death was related to RA or Alonso; that any threat from RA and Alonso, if it had existed before, would have dissipated after a lapse of six years since the 1^st applicant left the Philippines in 2009; that even assuming Alonso had threatened the 1^st applicant, there was insufficient evidence to show that the Philippine authority as a whole was targeting the 1^st applicant and OB; that there was no evidence to support the assertion that the Alleged Father would bribe the police in the Philippines; and that the 1^st applicant had in fact lost contact with her family since around November 2012 and there was no evidence to show that her family had done or would do anything to harm the applicants.

8.  By a further decision dated 23 December 2016, the Director rejected the applicants’ non-refoulement claims on the ground of BOR 2 risk[6].

The Board’s decision

9.  The applicants appealed to the Board against the Director’s decisions.  An oral hearing was held on 3 January 2017.  After the hearing, the 1^st applicant wrote to the Director on 17 January 2017 informing the Director that the 2^nd applicant “is already a Hong Kong citizen” and sought to “cancel” the 2^nd applicant’s non-refoulement application.  On 7 February 2017, the Board wrote to the 2^nd applicant acknowledging receipt of the 1^st applicant’s letter to the Director and treating it as an application to withdraw the 2^nd applicant’s appeal against the Director’s decisions.  The Board informed the 2^nd applicant that as a result, the Board has given direction that her appeal is dismissed. 

10.  On 12 July 2017, the Board dismissed the 1^st applicant’s appeal and confirmed the Director’s decisions against the 1^st applicant.  The Board found, among other things, the allegation that RA would harm the 1^st applicant was based on hearsay as he had never harmed or even contacted her, and that in any event there was sufficient state protection available to the 1^st applicant in the Philippines.  The Board concluded that there was no real risk of torture, CIDTP or any violation of non-derogable rights under BOR 2, nor did the 1^st applicant have any well-founded fear of persecution.

11.  The Board noted that the 2^nd applicant’s application for withdrawal of her appeal was granted and did not make any further order in respect of the 2^nd applicant.

The intended judicial review

12.  On 21 February 2018, a Form 86 was filed by the 1^st applicant seeking leave to apply for judicial review against the decision “made by the Immigration Department on my non-refoulement claim on 12/7/2017”. The Immigration Department was named as the only proposed respondent and interested party.  As the decision in respect of which relief was sought in Form 86 is the decision made on 12 July 2017, it would appear that the decision being the subject of the application for leave to seek judicial review is the decision of the Board, not the earlier decisions of the Director made on 12 March 2015 and 23 December 2016.  And that was how DHCJ Bruno Chan treated the application before him, as an application for extension of time to apply for judicial review of the decision of the Board on 12 July 2017 and an application for leave to apply for judicial review of that decision. 

13.  I have mentioned that the Form 86 was filed in the name of the 1^st applicant. She made a supporting affidavit, stating simply that she was seeking to review and reject the Immigration Department’s decision because “they disregard my dangerous situation”.  It is not apparent from the papers how the 2^nd applicant also became an applicant to this application.  The judge certainly dealt with the application as being made by the 1^st and 2^nd applicants and the orders he made were against both applicants.

14.  Contrary to the timing requirement imposed by Order 53 rule 4(1)[7] of the Rules of the High Court (Cap 4A), the applicants were late in filing the Form 86 by more than four months.

The judge’s decision

15.  Since the applicants did not request any oral hearing in the Form 86, the judge dealt with the application on the papers.

16.  On 23 July 2020, the judge handed down his decision refusing to extend time and dismissing the application for leave to apply for judicial review.  He found principally that (i)  the applicants had failed to provide any explanation for the substantial delay and (ii)  there was no error of law, procedural unfairness or any reasonably arguable basis to challenge the decision of the Board.

Ground of appeal

17.  On 4 August 2020, the applicants issued a summons seeking leave to appeal against the judge’s decision.

18.  On 8 September 2020, the judge held[8] that in view of the recent decision of the Court of Final Appeal in H v Director of Immigration (2020)  23 HKCFAR 248, the applicants were entitled to appeal to the Court of Appeal as of right without leave.  He gave the applicants a 14-day extension to file their Notice of Appeal.

19.  On 18 September 2020, the applicants filed their Notice of Appeal dated 23 July 2020.  The putative respondents in the Notice of Appeal are the Board and the Director.  The ground of appeal was stated to be:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on my non-refoulement case. They disregard our dangerous situation.”

20.  Before the appeal was heard, on 11 March 2021, the 1^st applicant issued a summons (“the Summons”)  stating the following:

“I would like to take out the 2^nd Applicant Cordoval Nadeeshan Crystal (named Nadeeshani Crystal in the Hong Kong Birth Certificate)  from my non-refoulement application as the said applicant is now a Hong Kong Resident.”

Somewhat confusingly, the putative respondent in the Summons was stated to be only the “Immigration Department”.

21.  On 27 May 2021, the Registrar of Civil Appeals gave directions requiring the “putative respondent” to state its stance in the appeal as well as on the Summons.  The Department of Justice replied on 31 May 2021 stating that the Director will take a neutral stance in the appeal and on the Summons.  It does not act for the Board.  As it was not entirely clear under what circumstances the Board granted the withdrawal of the 2^nd applicant’s appeal, the Department of Justice was requested to attend the hearing of the appeal to assist the court.  We have been assisted by the submissions of Ms Joycelyn Ho of the Department of Justice.

22.  On 19 August 2021, the 1^st applicant filed a four-page skeleton argument in support of her appeal, submitting that the Board’s decision was insensitive and constituted an “error of judgment”; that the Board was misguided to believe that the Philippines government practised the rule of law and could protect her as it was run by a dictatorial president; that there were reports that the Philippines was fraught with unlawful killings by police and armed individuals; that she was late in filing the Form 86 because she only realised the need to apply for judicial review after talking to an NGO; that there was a “lack of understanding of my country” and the decision-making process “could be perhaps” unconstitutional and tainted by “institutionalized bias”.

23.  At the hearing of the appeal on 20 September 2021, we heard further submissions from the 1^st applicant with the assistance of an English-Tagalog interpreter.

The 2^nd applicant’s appeal – analysis and disposition

24.  Since the 2^nd applicant is a small child (currently seven years old), it is clear that she is (and was)  unlikely to be able to make decisions on how her claim should be presented or make meaningful submissions on her own behalf (Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 at [46]).  Her claim should therefore be considered separately.

25.  The 2^nd applicant was not legally represented before the Board, the judge, or this Court.  The requirement of Order 80 rule 2 of the Rules of the High Court has not been complied with. Nevertheless, the Court has a discretion to treat this as an irregularity without rendering the proceedings a nullity under Order 2 rule 1 of the RHC (Zoraydah [2020] HKCA 442 at [8] and footnote 5; Jassal Tajinder Kumar [2021] HKCA 124 at [27]).  Further, as the 2^nd applicant is a minor, she obviously cannot conduct legal proceedings by herself and any delay of her mother in complying with the time limit in applying for judicial review cannot be blamed on the 2^nd applicant.

26.  It would appear to us that the Summons was meant to be an application for leave to withdraw the 2^nd applicant’s appeal.  The Summons was supported by the 1^st applicant’s affidavit repeating the contents of the Summons as quoted earlier, without any documentary evidence in support of the assertion that the 2^nd applicant is a “Hong Kong resident”.  We note that the minors in Fabio Arlyn Timogan, who were born to a Filipino non-refoulement claimant in Hong Kong out of the relationship with another non-refoulement claimant, have no right of abode in Hong Kong.  We have enquired with the 1^st applicant why the 2^nd applicant’s appeal to the Board against the Director’s decisions was withdrawn and was told it was for the same reason why the Summons was issued to “take out” the 2^nd applicant from the appeal before us, namely, that the 2^nd applicant has the status of a permanent resident of Hong Kong.

27.  At the hearing, the Department of Justice have provided the court with the letter of the 1^st applicant to the Board dated 17 January 2017, the birth certificate issued to the 2^nd applicant on 27 October 2016 and a DNA testing report dated 22 August 2016 indicating the results of the paternity test of the 2^nd applicant and a Pakistani male who is established as her father. The birth certificate stated that the 2^nd applicant has established her status of a permanent resident of Hong Kong by paragraph 2(e)  of Schedule 1 to the Immigration Ordinance (Cap 115)[9], being born in Hong Kong to a parent who is not of Chinese nationality and who has established permanent residence in Hong Kong under paragraph 2(d).

28.  Ms Ho informed the Court that the Director is satisfied that the aforesaid annotation on the birth certificate regarding the 2^nd applicant’s status of permanent resident of Hong Kong is correct.  We were given to understand by Ms Ho that for the Registrar of Births and Deaths to make this annotation on the birth certificate, he would have required a DNA testing report to establish the paternity of the father, the Hong Kong Identity Card of the father, and a statutory declaration of the father.  Apparently, the father of the 2^nd applicant as established by the paternity test has the right of abode in Hong Kong.

29.  We have enquired with the 1^st applicant regarding the information she had provided to the Director about the Alleged Father when she made her non-refoulement claim.  The 1^st applicant acknowledged to us that the Alleged Father was just a friend who was repatriated to Pakistan and she concealed the identity of the 2^nd applicant’s father from the authorities because the real father has a family in Hong Kong.  She claimed that the real father saw her and the 2^nd applicant accidentally in Yuen Long and offered to take a DNA test to establish paternity, which enabled the birth certificate to be issued to the 2^nd applicant with the annotation aforesaid.

30.  We are satisfied the 2^nd applicant has established that she has the right of abode in Hong Kong under paragraph 2(e)  of Schedule 1 to the Immigration Ordinance and that it is proper to withdraw her appeal against the decision of DHCJ Bruno Chan on 23 July 2020.  We grant leave to withdraw the 2^nd applicant’s appeal as sought in the Summons. 

The 1^st applicant’s appeal – analysis and disposition

31.  In her oral submissions, the 1^st applicant sought permission to stay in Hong Kong so she can look after the 2^nd applicant, as the real father is unable to do so and has not disclosed to his wife he has fathered a child by another woman.

32.  Having considered the 1^st applicant’s written and oral submissions, we dismiss her appeal.

33.  In our view, the judge correctly identified and applied the principles for determining whether to extend time, as set out in AW v Director of Immigration [2016] 2 HKC 393 at [27] to [36].

34.  In particular, we agree with the judge that there was no satisfactory reason for the delay.  Before us, the 1^st applicant asserted in her written submissions that the delay was not intentional as she only found out about the need to apply for judicial review after consulting an NGO, whereupon she immediately filed the Form 86.  No evidence was adduced to substantiate this assertion which was not put forward to the judge until she applied to him for leave to appeal.  In any event, even if we accept the 1^st applicant’s assertion, her mere unawareness or ignorance of the proper procedure does not constitute a good reason to extend time.

35.  We also agree with the judge that there is no reasonably arguable basis to challenge the Board’s decision.  The 1^st applicant’s assertion that the decision-making process might be unconstitutional and biased is nothing more than pure speculation.  We see no error of law, procedural impropriety or irrationality in the decision of the Board.  By the skeleton argument, the 1^st applicant by and large seeks to re-argue her non-refoulement claim and attack the merits of the Board’s decision.  As we have said before, this is not the function of judicial review: Shah Syed Talat Abbas v Torture Claims Appeal Board [2021] HKCA 13 at [15]-[16].

36.  For all the above reasons, we dismiss the 1^st applicant’s appeal.