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CACV 32/2020
[2020] HKCA 971
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 32 OF 2020
(ON APPEAL FROM HCAL 442/2018)
__________________________
BETWEEN
| FABIO ARLYN TIMOGAN |
1st Applicant |
| SALAUDIN RABIA |
2nd Applicant |
| SALAUDIN FAHEEM |
3rd Applicant |
| and |
| EVAN RUTH, ESQ, ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
| and |
| THE DIRECTOR OF IMMIGRATION |
Putative Interested Party |
__________________________
Before: Hon Lam VP, Barma and Au JJA in Court
Date of Hearing: 12 October 2020
Date of Judgment: 27 November 2020
________________________
JUDGMENT
________________________
Hon Lam VP (giving the Judgment of the Court):
Introduction
1. On 15 January 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant an extension of time to the applicants in HCAL 442/2018 to apply for judicial review against the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 6 July 2017. In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 22 July 2016 and 18 May 2017 rejecting the applicants’ non-refoulement claim.
2. On 21 January 2020, the applicants filed a Notice of Appeal against the Judge’s decision.
3. By a letter of 17 April 2020, the Registrar of Civil Appeals (“the RCA”) raised, amongst other things, a concern about the need to have solicitors to act for the 2nd and 3rd applicants by virtue of Order 80 Rule 2 in view of their status as minors.
4. On 1st June 2020, the Court gave the following directions:
“ 1. The Court wishes to receive submissions concerning the claims of the 2nd and 3rd Applicants on the following issue:
(a) Whether a guardian ad litem should be appointed for the 2nd and 3rd Applicants and if so, who shall be appointed;
(b) Whether the guardian should act by solicitors;
(c) Whether leave to apply for judicial review should be granted on the basis that it is reasonably arguable that the Director of Immigration and the TCAB had failed to consider the claims of the 2nd and 3rd Applicants as separate claims properly.
2. The Court will appoint an amicus to assist. Notice will be given to the Applicants and the Director of Immigration [“Director”] as Putative Interested Party as soon as such amicus is appointed by the Registrar of Civil Appeals.
3. To facilitate the process, the Court directs the Director of Immigration to lodge and serve within 14 days a bundle of documents including all the Non-Refoulement Claim Forms and other documents filed by the Applicants with the Director and placed before the TCAB and the decisions of the Director and the decision of the TCAB…”
5. Steps were taken to have an amicus appointed. The Registrar appointed Mr Jin Pao SC as amicus on 3 June 2020. We are grateful for the assistance rendered by Mr Pao in the present appeal. Mr Pao’s thorough submissions shed much light on how courts (and also the Director and the Board) should address non-refoulement claims by children.
6. The Director instructed Mr Enzo Chow to advance submissions in this appeal. We are also grateful for Mr Chow’s assistance. Though he represented the Director, Mr Chow had also been very fair towards the applicants in the conduct of this appeal.
7. After reading the written submissions of the 1st Applicant, Mr Chow and Mr Pao, we directed a hearing be held.
Background
8. The 1st Applicant is a national of the Philippines. She came to Hong Kong in 2008 to work as a domestic helper. Her last employment contract was terminated on 9 October 2010. She was permitted to stay as a visitor until 28 December 2010, however she did not depart Hong Kong within the required time. On 15 February 2011 she surrendered herself to the Immigration Department for overstaying and was released on recognizance the same day. She gave birth to the 2nd Applicant in May 2011 and the 3rd Applicant in January 2015 in Hong Kong. They were children of the 1st Applicant and another non-refoulement claimant (whom she met in Hong Kong). Though they had undergone a marriage ceremony in June 2010, the 1st Applicant had been married to a Filipino in the Philippines since 1997 and there had not been any divorce to dissolve that earlier marriage. Thus, in the absence of any court order made under Section 3 of the Guardianship of Minors Ordinance Cap 13, the father does not have any custody of the children.
9. The 2nd and 3rd Applicants do not have right of abode in Hong Kong. By two care and protection orders made by a magistrate on 7 February 2020, they were placed under the care of International Social Service Hong Kong Branch under supervision of a Social Welfare Officer for a period of 12 months. The orders did not affect the custody of the children. According to the law, their custody remains with their mother, viz the 1st Applicant.
10. The 1st Applicant lodged a non-refoulement claim for herself on 5 January 2015 and for the 2nd and 3rd Applicants on 5 September 2015. Whilst they were legally represented before the Director, there was no legal representation for them after that. In the proceedings before the Board, the 1st Applicant acted for the 2nd and 3rd Applicants. She also did so in the Court of First Instance notwithstanding the requirement under Order 80 Rule 2.
11. The Applicants’ claim was based on the fear that, if they returned to the Philippines, they would be harmed or even killed by the 1st Applicant’s Filipino husband because he was abusive and had threatened her in respect of her having children with another man. Her Catholic family in the Philippines disapproved of her relationship with the other non-refoulement claimant and her conversion to Islam. The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2020] HKCFI 79).
12. By two notices of decision dated 22 July 2016 and 18 May 2017, the Director assessed the Applicants’ claim on all applicable grounds and determined it against them. The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].
13. The Applicants lodged an appeal/petition to the Board against the Director’s decisions. An oral hearing was held on 18 May 2017, during which the 1st Applicant gave evidence. After hearing the 1st Applicant, the Board found that the 1st Applicant had not received any threats from her Filipino husband since 2011. Nor had she received any threats from her family. The Board also considered that there is no reason why the Applicants could not safely relocate to Manila where the 1st Applicant had previously worked. The Board dismissed the Applicants’ appeal/petition on 6 July 2017 on all the applicable grounds.
Decisions of the court below
14. On 11 September 2017, the 1st Applicant sought leave, for herself only, in HCAL 608/2017 to apply for judicial review against the Board’s decision. The Form 86 and affirmation in support did not raise any ground for seeking relief.
15. Following consideration of the documents only, on 12 March 2018 Wong J refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [9] of the Form CALL-1 ([2018] HKCFI 525, HCAL 608/2017) as follows:
“ 9. I have perused the Decision of the Director (including the first Decision of the Director which the Court obtained on its own initiative) and the Adjudicator ... I do not find a reasonably arguable case exists. The applicant had been given sufficient opportunity to pursue her claim. The primary basis of the claim was death threat, arising from domestic matters, by her first husband who has all along been living in the Philippines. There was no specific criticism on fairness of the proceedings. It is apparent that both the Adjudicator and the Director had applied the law correctly. Their respective assessment on the applicable grounds was based on evidence and relevant COI. Their respective conclusion was sound and reasonable. Both were of the view that internal relocation will be feasible, I do not find flaw in the consideration.”
16. The 1st Applicant did not appeal against Wong J’s decision.
17. On 19 March 2018, the 1st Applicant sought leave, out of time, in HCAL 442/2018 to apply for judicial review against the Board’s decision. This time the application was brought not only for herself but also the 2nd and 3rd Applicants. The Form 86 did not contain any ground for seeking relief. In the affirmation in support of the leave application dated 19 March 2018, the 1st Applicant did not disclose she had previously applied for leave unsuccessfully in HCAL 608/2017. She advanced the following eight grounds for judicial review (as summarized at [11] of the Form CALL-1 ([2020] HKCFI 79)):
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;
(5)...
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