SAN ESTEBAN LEAH DE LEON AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 891/2019

[2024] HKCFI 3494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 891 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicants in open court;

1.  Extension of time for the application for leave to apply for Judicial Review be granted;

2.  Leave for the 1^st and 2^nd Applicants to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 18 April 2017 be granted;

3.  The 2^nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

4.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

5.  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 44-year-old national of the Philippines who last arrived in Hong Kong on 22 January 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 October 2015, but when her employment was prematurely terminated on 1 April 2014, she did not depart and instead overstayed, and was arrested by police on 15 May 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by a man who had raped her before. She was subsequently released on recognizance pending the determination of her claim.

2.  While released on recognizance pending the determination of her claim, A1 was arrested by police on 20 May 2015 for trafficking in a dangerous drug and was subsequently convicted and sentenced to prison for 12 months, during which she gave birth to a daughter, the 2^nd Applicant (“A2”) on 4 September 2015, and upon her discharge from prison she also raised a non-refoulement claim for her daughter on the same basis of her claim and to be jointly determined together.

3.  A1 was born and raised in Municipal Tanay, Rizal Province, the Philippines. After leaving school she worked as a domestic helper in various places to make her living.

4.  One day in around June 2009 while she was on her way home, A1 was grabbed from behind by a man by the name of Sanchez whom she casually knew, and was forced into a car and driven to an abandoned building where she was attacked and raped by Sanchez.

5.  Afterwards she was dropped off by Sanchez near her parents’ home with a warning not to tell anyone about the rape or to go to the police or else he would kill her.

6.  Upon returning home A1 told her parents of the rape but due to Sanchez’s threats and in order not to bring shame to the family, it was decided neither A1 nor her parents would disclose the rape to anyone or to make any report to the police.

7.  Soon A1 became pregnant as a result of the rape, and to hide it from anyone in her home district she and her parents moved to Bulusan, Sorsogon to stay in her uncle‘s place where she subsequently gave birth to her first daughter in 2010, and thereafter she moved with her daughter and parents back to their home in Municipal Tanay, and whenever she ran into Sanchez she would be threatened and reminded by him not to reveal the rape to the police.

8.  In order to stay away from Sanchez’s threats and to make her own living, A1 placed her daughter in the care of her parents and went to Singapore and then Qatar to work as a domestic helper before coming to Hong Kong in April 2013 to work as a foreign domestic helper, but when her last employment was prematurely terminated on 1 April 2014, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and after she was arrested by police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  While released on recognizance pending the determination of her claim, A1 was arrested by police on 20 May 2015 for trafficking in a dangerous drug and was subsequently convicted and sentenced to prison for 12 months, and while in prison she gave birth to A2 and subsequently also raised a non-refoulement claim for her on the same basis of her own claim, and for which she also completed a NCF for A2 on 14 January 2016 and to be assessed jointly with her own claim together.

10.  By a Notice of Decision dated 24 March 2016 and a Notice of Further Decision dated 4 January 2017 the Director of Immigration (“Director”) rejected the claims of both A1 and A2 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.  In his decisions the Director took into account of all the relevant circumstances of their claims and assessed the level of risk of harm from Sanchez upon their return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Sanchez to seriously harm or kill A1 or A2 whom he did not even know exists, and that in any event in the absence of any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 101 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for Sanchez to locate them.

12.  A1 and A2 then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which they attended an oral hearing on 16 January 2017 in persons before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 18 April 2017 their appeal was dismissed by the Board which also confirmed the Director’s decisions.

13.  In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim of having been raped by Sanchez or of his threats to harm or kill her that caused her to overstay in Hong Kong to seek protection, that even if her claimed risk from Sanchez were real that there was no reliable evidence of any real intention of Sanchez to seriously harm or kill her, nor is there any basis upon which A2 would be in need of non-refoulement protection or any information that would indicate that she would not be able to obtain an education or support in the Philippines or that A2 would be harmed for any other reason should she return there with her mother that it concluded that neither A1 nor A2 has established their non-refoulement claims under any of the applicable grounds.

14.  On 1 April 2019 A1 for herself and A2 filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just stated that she does not want to go back yet because of her daughter’s condition that she has to go to the hospital all the time for her treatment which she cannot obtain in the Philippines but without providing any further details or supporting documentary evidence to corroborate such assertions.

15.  By then the Applicants were also out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

16.  As the last day of the three-month period for them to file their Form 86 fell on 18 July 2017, the Applicants were therefore more than 1 year 8 months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicants’ case, a delay of more than 1 year 8 months must be considered as extremely substantial and inordinate, for which A1 did not provide any explanation or reasons in their Form or affirmation, nor was she able to give any explanation at the hearing of their application, and as the record shows that the decision was sent on the same day of 18 April 2017 to their last reported address which is the same as stated in their present application without being returned through undelivered post, I am unable to see any good or valid reason for their such serious delay.

18.  As for the merits, if any, of their intended application, as noted above that the Applicants have also failed to put forward any proper ground for their intended challenge, while at the hearing A1 repeated her assertion that A2 has a medical condition with high blood cells that requires regular medical attention at the hospital but again she failed to provide any supporting medical report or documentary evidence, nor was she able to confirm whether she did raise such issue to the Board during their appeal hearing which she claimed to no longer remember due to the long lapse of time.

19.  Nevertheless, given the seriousness of the issue at hand and the fact that A2 was a minor without legal representation in her appeal before the Board, and still is at the age of 9 years old in her present application as required by Order 80 rule 2 of the Rules of the High Court, for which her mother had earlier been advised to seek legal representation or legal aid but apparently not done, the Court will adopt an enhanced standard in scrutinizing the Board’s decision for rejecting their claims, in particularly that of A2, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, that children claimants especially those of tender age younger than 12 years old are unlikely to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf, the decision-maker should treat their non-refoulement claims as separate claims from those advanced by their parents even if they were based on the same set of primary facts, that 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, that 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 situation, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

20.  Henceforth in dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the claim, the court shall similarly pay special attention to examine in the context of high standards 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 having regard to the personal circumstances of the minor which may support potential minor-specific non-refoulement bases but which may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board: see also Jasvir Singh & Others [2021] HKCA 53.

21.  As noted above the Board disbelieved A1’s claim of having been raped or threatened by Sanchez that caused her to leave her country and to eventually overstay in Hong Kong to seek non-refoulement protection due to the various material inconsistencies and discrepancies in her evidence as set out in [24] – [45] of the decision, of which the Board was in my view entitled to with the benefit of hearing her in oral evidence, and in the absence of any error of law or procedural unfairness either in her process before the Board or in its decision being shown by A1, I do not find any reasonably arguable basis to challenge such findings of the Board as regard her claim per se.

22.  As for A2’s claim, the Board made the following findings in [46] of its decision:

“As noted previously, the second Appellant has not advanced any claims independent of those of her mother. Nevertheless, I have considered whether there is any other basis upon which the second Appellant may be in need of non-refoulement protection. I can find no information that would indicate the second Appellant would not be able to obtain an education and support in the Philippines or that she would be harmed for any other reason should she return there with her mother.”

23.  It is however unclear from the Board’s decision, and for that matter the Director’s decision as well, what information or material were there as regard the personal circumstances of A2 that led the Board to such conclusion that she would not be in need of non-refoulement protection given the fact that there was virtually no information disclosed at all about A2 other than the date of her birth and her sex in either decisions of the Director or the Board, relevant information such as who is her father or his nationality or ethnicity since she was named just after her mother A1, or any information about her race or religion or whatever medical issues that she may have according to her mother. Indeed there is simply no information of the personal circumstances of A2 at all upon which the Board could draw to arrive at its such conclusion, and if there were any such information available before it, the Board simply failed to give its reasons adequately or at all.

24.  For these reasons, and notwithstanding the lack of merits in A1’s own claim, the fact is that she is the custodian of A2 and would obviously be affected or impacted by any potential non-refoulement bases which may be specific to A2 upon their return to the Philippines, I am of the view that their intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (i) the Board erred in law in failing to properly and adequately consider the personal circumstances and matters of A2 for any potential non-refoulement bases; and (ii) the Board in dismissing A2’s non-refoulement claim failed to give any or adequate reasons or bases for its decision, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

25.  In the premises, I extend time to the late application of the Applicants, and grant leave to them to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

26.  Given the fact that A2 is a minor, I also direct that the Official Solicitors shall act for her in these proceedings.

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

Form CALL-1