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Otad Jenny Bergonio And Another v Torture Claims Appeal Board And Another

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date29 March 2021
Neutral Citation[2021] HKCA 408
Year2021
Judgement NumberCACV409/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV409/2020 OTAD JENNY BERGONIO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 409/2020

[2021] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 409 OF 2020

(ON APPEAL FROM HCAL 626/2018)

________________________

BETWEEN

OTAD JENNY BERGONIO 1st Applicant
BANDELA CHERRYTHA 2nd Applicant
and
TORTURE CLAIMS APPEAL BOARD 1st Putative Respondent
DIRECTOR OF IMMIGRATION 2nd Putative Respondent

________________________

Before: Hon Lam VP, Yau and ST Poon JJ in Court

Date of Hearing: 22 March 2021

Date of Judgment: 29 March 2021

________________________

J U D G M E N T

________________________


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

Introduction

1. On 17 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the Applicants 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 16 March 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 15 July 2016 and 20 October 2017 rejecting the Applicants’ non-refoulement claims.

2. On 26 August 2020, the 1st Applicant filed, on behalf of herself and the 2nd Applicant, a Notice of Appeal against the Judge’s decision.

Background

3. The 1st Applicant is a Filipino national. She last arrived in Hong Kong on 23 August 2014 and was employed as a foreign domestic helper until 27 July 2015. She did not depart, and has overstayed. The 1st Applicant surrendered to the Immigration Department on 9 September 2015.

4. The 2nd Applicant is the 1st Applicant’s daughter, born on 11 May 2015 in Hong Kong out of wedlock. The 2nd Applicant’s father is an Indian who is also asylum seeker. On 13 January 2016, the 1st Applicant lodged a non-refoulement claim for herself and the 2nd Applicant.

5. The 1st Applicant’s claim was based on the fears that, if she returned to the Philippines, she would be harmed or even killed by (1) her estranged husband (with whom she had been separated since 2012) and/or his relatives; and (2) his creditor, due to his failure to repay the debt. The factual background of the claim was succinctly summarized by the Board at [35] – [49] of the Board’s decision.

6. By notices of decision dated 15 July 2016 and 20 October 2017, the Director assessed the 1st and 2nd Applicants’ claims on all applicable grounds, and determined their claims against them. The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], while the latter covered BOR 2 risk[4].

7. The Applicants appealed to the Board against the Director’s decision. An oral hearing was held on 14 November 2017, during which the 1st Applicant gave evidence. The Board considered that the likelihood of the husband going after the 1st Applicant to kill or harm her was low due to the passage of time and he was living with another woman. Further, there was no evidence that the police or other state authorities would not protect the 1st Applicant. There was no evidence of the creditor’s pursuit. As such, the Board concluded that there was no real risk of harm from either the husband or the creditor in the event of refoulement. The Board also considered that internal relocation in the Philippines was viable.

8. In respect of the 2nd Applicant, the Board assessed the risk of harm to her at paragraph 60 of its decision. It concluded that there was no evidence that she would suffer harm as an illegitimate child. The Board also rejected the claim of the 2nd Applicant.

9. On 16 March 2018 the Board dismissed the 1st and 2nd Applicants’ appeals on all the applicable grounds.

Decision of the court below

10. On 12 April 2018, the Applicants sought leave from the court to apply for judicial review against the Board’s decision of 16 March 2018. In her affirmation in support, the 1st Applicant stated that the Director disregarded the Applicants’ dangerous situation.

11. Upon consideration of the documents only, on 17 August 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [11] – [14] of the Form CALL-1 ([2020] HKCFI 1683) as follows:

“ 11. On 12 April 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in their Form, and in A1’s supporting affidavit of the same date she merely stated that she wants to review those decisions as the Director and the Board disregarded her dangerous situation in her home country but without providing any particulars or elaborations as to how they failed to do so or to put forward any other proper or valid ground for their intended application. Nor did they request any oral hearing for their application. As such and in the premises I do not find any reasonably arguable basis for their intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.”

Appeal to this Court

12. On 26 August 2020, the 1st Applicant, on behalf of herself and the 2nd Applicant, filed a Notice of Appeal against the Judge’s decision. The stated ground of appeal was that the Board disregarded the Applicants’ dangerous situation.

13. The 1st Applicant lodged written submissions on appeal on 19 February 2021. In those submissions, the 1st Applicant argued:

(1) the Judge and the Board lacked sensitivity toward the danger faced by her;

(2) the Director failed to consider the factors in local contexts and does not understand the intricacies of the situation in the country;

(3) the 2nd Applicant should be under the protection of United Nations Convention on the Rights of the Child; and

(4) human rights report on the Philippines indicate that the country is fraught with unlawful or extrajudicial killings, further exacerbated by that country’s “drug war” and the New People’s Army.

Legal principles

14. In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu...

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