CONDEZ JUDELYN SAMELLANO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 368/2019

[2023] HKCFI 489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 368 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 1st Applicant in open court;

1.  Leave for the Applicants to apply for Judicial Review be granted;

2.  The 2^nd Applicant be represented by the Official Solicitor; and

3.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 38-year-old national of the Philippines who last arrived in Hong Kong on 16 November 2015 as a visitor with permission to remain up to 30 November 2015 when she did not depart and instead overstayed, and on 15 December 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditor over her unpaid debts, and while being released on recognizance pending the determination of her claim, she married her Indian husband on 18 March 2016, and after given birth to their son on 24 October 2016, she also raised a non-refoulement claim for him as the 2^nd Applicant (“A2”) on the same basis as her claim.

2.  A1 was born and raised in President Roxas, North Cotabato, the Philippines. After leaving school she worked as a domestic helper, formed a relationship with her boyfriend, and raised a family with 2 children in her home district.

3.  However, after her boyfriend passed away in 2012, and in order to earn more income to support her family, A1 borrowed a loan from her creditor to pay for her application expenses to work as a foreign domestic helper in Hong Kong, with the loan repayable by monthly instalments with interests, and so on 31 August 2012 she departed the Philippines for Hong Kong to start her first employment contract, and from her salary she would make monthly remittances to her father in the Philippines for her loan instalment payments.

4.  However, in September 2014 when she returned to her home in the Philippines for holiday, she discovered that her father had not been making her loan repayments from her remittances to her creditor who then on one occasion came with another man to beat her, and it was only when her family members were able to intervene that A1 was not seriously injured, and before they left her creditor threatened to kill her if she still failed to repay her loan, and thereafter she returned to Hong Kong to continue with her employment.

5.  On 24 April 2015 her employment was prematurely terminated, and when she was unable to secure another employment, she left Hong Kong for Macau to work as a domestic helper there at a lower salary, but as a result she was unable to make any further loan repayment to her creditor.

6.  On 30 November 2015 A1 travelled to Hong Kong as a visitor and subsequently overstayed and raised her non-refoulement claim for protection for which she was released on recognizance pending the determination of her claim.

7.  On 18 March 2016 she married an Indian man in Hong Kong, and after subsequently giving birth to A2, she also raised the same claim for him, and for which she completed a Non-refoulement Claim Forms (“NCF”) for herself and A2 respectively on 28 September 2017 and 11 December 2017, and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 13 February 2018 the Director of Immigration (“Director”) rejected the Applicants’ claims jointly 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that their claimed future risk of harm from A1’s creditor and his followers upon their return to the Philippines as real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the creditor to seriously harm or kill them other than to press A1 to repay her loan, that in any event it was a private monetary dispute between A1 and her creditor without any official involvement that state or police protection would be available to the Applicants upon their return to the Philippines 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 104 million people spread across a vast territory of more than 300,000 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 part of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her creditor to locate them.

10.  On 26 February 2018 the Applicants lodged their appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 24 July 2018 before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 28 December 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted A1’s claim of threats from her creditor over her outstanding debts but found that she had been assaulted only once and with no evidence that she had suffered physical or mental suffering of the requisite severity, nor is there evidence of any real intention of her creditor to seriously harm or kill her or her son, and that it was a private monetary dispute between them without any official involvement that state or police protection would be available to her and her son upon their return to the Philippines that their claim for non-refoulement protection failed on all applicable grounds.

12.  On 11 February 2019 A1 filed a Form 86 as the only applicant for leave to apply for judicial review of Board’s decision, but at the subsequent hearing of her application she confirmed that she had intended to include her son in the intended application, and accordingly I granted leave for her to amend the Form 86 to include her son as the 2^nd Applicant for her intended application.

13.  However, no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date to which she just attached a copy of the Board’s decision without putting forward any proper ground for their intended challenge, and at hearing of their application A1 just stated that as A2 has been attending education in Hong Kong, she wants both of them to be allowed to remain in Hong Kong so that A2 can continue with his education here which is in my view clearly not reasonably arguable for their intended challenge.

14.  Nevertheless, given the gravity and serious implication of what is at stake in proceedings of this nature, high standards of fairness require that the Court on judicial review to subject the Board’s decision to rigorous examination and anxious scrutiny to ensure of no error of law or irrationality or procedural unfairness in their process before the Board or in its decision in dismissing their appeal.

15.  As noted above the Board accepted A1’s claim of threats from her creditor over her debts but found that the only incident of physical assault on A1 did not reach the requisite severity, and that in the absence of any official involvement that state or police protection would be available to her upon her return to the Philippines, and as such the Board did not find it necessary to consider the issue of internal relocation (see [73], [75]-[82] and [117] of the decision). On the evidence provided by A1 and the relevant COI available before the Board, I agree that the Board was entitled to find that state protection would be available to A1 to minimize the risk of harm from her creditor upon her return to the Philippines.

16.  As for the claim of A2, the Board accepted A1’s evidence that he is her son born in Hong Kong in 2016 and has Filipino nationality ([61] of decision), and proceeded to made the following similar findings at paragraph 74 of the decision:

“As to A2, the considerations applying to A1 apply to him too. A2 was born in 2016 in Hong Kong and had never returned to the Philippines. I have considered whether A2 may be at particular risk as an illegitimate child, but there is no evidence that he would. There was no or no reliable evidence that A2 had adverse personal experience in the Philippines, or that the alleged fear of A2 being harmed or ill-treated by Creditor is more than speculative.”

17.  While it is true that A2 has never been to the Philippines and that his claim is based essentially on the same facts of his mother A1, in relation to children’s non-refoulement claims, the proper approach has been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & Others [2021] HKCA 53 that non-refoulement claims by children even if based on the same set of primary facts are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children and matters which may support potential minor-specific non-refoulement bases but may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, and that ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

18.  Firstly, in applying these principles, I note that the Board, and for that matter the Director too, just accepted A1’s evidence that A2 has Filipino nationality without relying on any relevant COI despite the fact that he was born outside the Philippines and to an Indian father, and as such there was never any consideration as to any possible risk or problems that he may encounter in entering or staying in the Philippines or as to his rights to essential matters such as education and schooling to which Filipino children are entitled, or more relevantly from the point of view of A2, notwithstanding the relatively low level of harm previously inflicted by the creditor on his mother as an adult, whether A2 would face risk of harm of the requisite level of severity so far as he then as a 2-year old child was concerned in his appeal before the Board. In the circumstances it seems to me reasonably arguable that child-specific matters were relevant but had not been separately and sufficiently explored by the Board in the absence of legal representation for A2, thus giving rise to a case of procedural unfairness in the Board’s determination of his claim.

19.  Such procedural defect of course in some cases can be rendered immaterial if the Board had gone on to find internal relocation viable to negate such risk to the child claimant, but as noted above the Board in the present case did not find it necessary to consider the issue of internal relocation upon arriving at the view that neither A1 or A2 had established any real risk of persecution in their home area (see [115]-[117] of decision), and for the reasons given above, it is in my view reasonably arguable that the Board should have proceeded to consider whether internal relocation would be available to both Applicants given their personal circumstances and the fact that A2 at his age would be solely dependent on his mother and no one else in almost all aspect of his life anywhere in the Philippines where he has never been before if refouled to that country.

20.  For the reasons given, I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (i) the Board acted procedurally unfair in failing to separately consider or consider sufficiently child-specific matters of A2 in his personal circumstances relevant to his claim; and/or (ii) the Board erred in the circumstances of the Applicants’ case to find it unnecessary to consider the issue of internal relocation in its determination of their claim, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

21.  In the premises, I grant leave to the Applicants to apply for judicial review of the Board’s decision based on the grounds stated above, and according 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.

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