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Cordoval Myrna Beniasen And Another v Torture Claims Appeal Board And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 September 2021
Neutral Citation[2021] HKCA 1426
Year2021
Judgement NumberCACV486/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV486/2020 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)

________________________

Cordoval Myrna Beniasen 1st Applicant
Cordoval Nadeeshan Crystal 2nd Applicant
and
Torture Claims Appeal Board 1st Putative Respondent
Director of Immigration 2nd Putative Respondent

________________________

Before: Hon Kwan VP, Barma JA and Lisa Wong J in Court

Date of Hearing: 20 September 2021

Date of Judgment: 29 September 2021

________________________

J U D G M E N T

________________________


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 1st 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 1st 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 1st 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 1st applicant formed a relationship with a Pakistani man (“the Alleged Father”). She gave birth to a daughter on 18 October 2013, who is the 2nd 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 2nd applicant was born. In September 2014, the 1st 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 1st applicant and her cousin Oyto Beniasen (“OB”). On 18 June 2011, OB was shot dead while driving his taxi and the 1st applicant believes that the killing was done by RA or Alonso. The 1st 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 1st 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 2nd applicant.

(c) Third, it is said that the Alleged Father wanted to bring the 2nd 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 2nd 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 1st 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 1st applicant left the Philippines in 2009; that even assuming Alonso had threatened the 1st applicant, there was insufficient evidence to show that the Philippine authority as a whole was targeting the 1st 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 1st 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 1st applicant wrote to the Director on 17 January 2017 informing the Director that the 2nd applicant “is already a Hong Kong citizen” and sought to “cancel” the 2nd applicant’s non-refoulement application. On 7 February 2017, the Board wrote to the 2nd applicant acknowledging receipt of the 1st applicant’s letter to the Director and treating it as an application to withdraw the 2nd applicant’s appeal against the Director’s decisions. The Board informed the 2nd applicant that as a result, the Board has given direction that her appeal is dismissed.

10. On 12 July 2017, the Board dismissed the 1st applicant’s appeal and confirmed the Director’s decisions against the 1st applicant. The Board found, among other things, the allegation that RA would harm the 1st 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 1st 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 1st applicant have any well-founded fear of persecution.

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

The intended judicial review

12. On 21 February 2018, a Form 86 was filed by the 1st 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 1st 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 2nd applicant also became an applicant to this application. The judge certainly dealt with the application as being made by the 1st and 2nd 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...

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