CACV 320/2023, [2024] HKCA 1154
On appeal from [2023] HKCFI 2487
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 320 OF 2023
(ON APPEAL FROM HCAL NO 925 OF 2019)
________________________
BETWEEN |
| | Bool Lorenza Atienza | 1st Applicant |
| | Bool Jay Gonzales | 2nd Applicant |
| | Bool Lander Jay Atienza | 3rd Applicant |
| | Bool Jasmine Lei Atienza | 4th Applicant |
| | and | |
| | Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office | Putative
Respondent |
| | and | |
| | Director of Immigration | Putative
Interested Party |
________________________
| Before: | Hon Kwan VP and Chu VP in Court |
| Date of Judgment: | 13 December 2024 |
________________________
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 order of Deputy High Court Judge Lung (the “Judge”) dated 10 October 2023 (the “Judge’s Decision”)[1] refusing to grant them leave to apply for Judicial Review against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 21 March 2019.
2. On 16 October 2023, the applicants indicated their consent in writing for this appeal to be disposed of on paper. Accordingly, we proceed to consider this appeal on paper based on the available materials.
Background
3. The applicants are nationals of the Philippines. The 1st applicant (the “Mother”) last entered Hong Kong on 1 October 2016 as a visitor and was permitted to stay until 15 October 2016. She did not depart and had overstayed since 16 October 2016. On 26 October 2016, she surrendered to the Immigration Department. The 2nd applicant (the “Husband”), together with the 3rd applicant (the “Son”) and 4th applicant (the “Daughter”), entered Hong Kong on 13 January 2017 and were permitted to stay as visitors until 27 January 2017. They also did not depart and had overstayed since 28 January 2017. On 1 February 2017, they surrendered to the Immigration Department.
4. On 24 February 2017 and 31 March 2017 respectively, the Mother lodged a non-refoulement claim by written submissions. Later, on 10 and 31 March 2017, the Husband lodged his non-refoulement claim and the non-refoulement claims on behalf of their children by written submissions. The family’s claims were jointly assessed. Their claims were based on a risk of harm from the moneylenders as the Mother failed to repay the loans. Details of the applicants’ claims were summarized by the Judge at [7] to [9] of the Judge’s Decision.
5. By a Notice of Decision dated 13 February 2018 (the “Director’s Decision”), the Director dismissed the applicants’ non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].
6. The applicants jointly appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for their appeals, during which the Mother testified on behalf of the family. On 21 March 2019, the Board dismissed their appeal and confirmed the Director’s Decision (the “Board’s Decision”). The Board’s reasons were summarised by the Judge in [13] – [15] of the Judge’s Decision:
“13. Having considered the evidence, the Board found that the number and nature of the inconsistencies and contradictions undermined the reliability of the applicants’ claims [32]. In particular, the Board noted that the 1st applicant’s evidence on the alleged enemies was inconsistent and that she had missed out a significant piece of information that she was allegedly located by one of the moneylenders while she went into hiding [32]. Further, the Board refused to accept that the 1st applicant had borrowed a sum as alleged; that the moneylenders remained as a threat to the family, especially the 1st applicant had not heard from them since October 2016; that the applicants had suffered any physical or mental sufferings that attained a minimum level of severity; that the Philippine government refused to offer assistance to the family [33].
14. In addition, the Board found that the country of origin information (‘COI’) showed the availability of state protection [39]-[46]. In any event, internal relocation was also a viable alternative for the applicants [68]-[71].
15. In the premises, the Board refused the applicants’ claims and dismissed their appeals.”
The Judge’s Decision
7. On 4 April 2019, the applicants filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision. No ground of intended review was given by the applicants in their Form 86 or the Mother’s supporting affirmation. The applicants applied for legal aid but their application was refused by the Legal Aid Department.
8. On 6 February 2023, the applicants attended an oral hearing before the Judge. A Tagalog interpreter was present to provide language assistance.
9. On 10 October 2023, the Judge gave his decision refusing to grant leave to the applicants to apply for judicial review for the reasons as summarised below (see [18]- [25] of the Judge’s Decision):
(1) The role of the court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its decision on the applicants’ appeal. The court does not usurp the fact-finding power vested in the Director and the Board. The court will bear in mind that the Board’s Decision should be subjected to rigorous examination and anxious scrutiny.
(2) Before the Judge, the Mother said that they wanted to stay in Hong Kong as the Son was sick and the Daughter should continue with her education here. There is no good reason for the Mother and the Husband to challenge the Board’s Decision and their applications must be dismissed.
(3) In relation to the children, i.e. the Son and the Daughter, it is necessary for the court to consider their positions separately: Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office[2020] HKCA 971. However, even if the Board did not appear to have considered the children’s claims separately, if there is no material that may give rise to concern there may be non-refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of lack of legal representation, it is open to the court to conclude the children’s intended judicial review to be without merit. In such a case, the court may dismiss the leave application: Raj & Others v Torture Claims Appeal Board/ Non-refoulement Claims[2022] HKCA 77 at [11] and [21]. In the present case, the Board assessed the applicants’ appeals as a composite appeal, without separate consideration of the children’s claims. However:
(i) The Son (3rd applicant), who was born on 12 May 2000, was then of age; the Daughter (4th applicant), who was born on 23 June 2006, was then 17 years old. Even if the case were to be remitted to the Board, by then she will be of age too;
(ii) The applicants were legally represented by the Duty Lawyer at the screening before the immigration officer and there was no child-specific issue raised by the legal representative for the children;
(iii) Even at the stage of the hearing before the Judge, the Mother had only mentioned that the Daughter should continue with her education in Hong Kong, which is not a valid ground for her application;
(iv) There is no material that may give rise to concern there may be non-refoulement grounds that relate specifically only to the Son and the Daughter but not advanced to the Board or considered by it because of the lack of legal representation before the Board.
(v) For the reasons above, the application of the Son and Daughter has no realistic prospect of success.
(4) The Judge is therefore of the view there is no realistic prospect of success in the applicants’ joint application for judicial review of the Board’s Decision.
10. The Judge accordingly dismissed the Applicants’ joint application for leave to apply for judicial review of the Board’s Decision.
This appeal
11. In their Notice of Appeal filed on 16 October 2023, the applicants, without specifically setting out separate grounds, challenged the Director’s finding that there was no real risk of possible loss of life; that the Immigration Department was mistaken about the practice of moneylenders (loan sharks) in the Philippines, which are dangerous and are often politically affiliated and condoned by the police. The applicants repeated their fear of the loan shark’s enforcement actions and their alleged criminal intimidation. The applicants also claimed that possible relocation was improbable, as they did not wish to live in fear and had their children’s wellbeing to consider.
12. At the time of the lodging of the Notice of Appeal, the Daughter was still a minor. By the directions of the Registrar of Civil Appeals dated 19 October 2023, the applicants have been reminded that a minor claimant should act by a next friend and must act by a solicitor and that steps should be taken on behalf of the Daughter to comply with Order 80 rule 2 Rules of the High Court (Cap 4A). The applicants have not arranged for separate legal representation for the Daughter.
13. The applicants have again applied for legal aid but their application was refused by the Legal Aid Department.
14. Pursuant to the directions of the Registrar of Civil Appeals dated 25 October 2023, the applicants lodged their written submissions on 15 November 2023. In the submissions, the applicants repeated the arguments made in the Notice of Appeal. They claimed that the Son was diagnosed with End Stage Kidney Disease and required continuous dialysis treatment. If the family were to be sent back to the Philippines, such treatment would not be available. They enclosed the Son’s medical and hospital appointment records and the Daughter’s community service and hospital record.
Discussion
15. The Court of Appeal’s general approach in dealing with non‑refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]). The Court of Appeal does not consider evidence that was not advanced before the Director of Immigration or the court below.
16. Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022.
17. In our view, the applicants’ case has no merit. The applicants had failed to identify or show with specific particulars any error in the Judge’s Decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Judge’s Decision. General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. The expressed health concerns of family members are also not proper grounds. Their appeal must fail on the basis of lack of proper grounds of appeal alone.
18. In any event, we have considered the Judge’s Decision carefully and are unable to see any reasonable ground of appeal against it. We see no basis to disturb the Judge’s Decision.
19. As to the Daughter’s application, even though her application was not brought by a next friend acting by a solicitor as required under Order 80 rule 2, the court has discretion to treat such non-compliance as a mere irregularity under Order 2 rule 1. If the court is satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board such that the minor’s non-refoulement claim had been properly assessed by the Director and the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case the court may dismiss the leave application notwithstanding that the minor had not been legally represented before the Board and before the judge, and treat the non-compliance with Order 80 rule 2 as a mere irregularity: Gagga Singh v Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office[2022] HKCA 7 at [22]-[24].
20. In the present case, it was the applicants’ position throughout (before the Director and the Board) that the Daughter’s claim was made on the same basis as the other family members. In the circumstances, we are satisfied that the Daughter’s claim had been properly assessed by the Director and the Board and no underlying matter has been advanced that may support her intended application for judicial review. We see no error in the Judge’s Decision. We therefore treat the absence of legal representation of the Daughter before the Judge in this appeal as a mere irregularity.
21. The applicants’ appeal against the Judge’s Decision has no merit. We therefore dismiss their appeal.
(Susan Kwan)
Vice President | (Carlye Chu)
Vice President |
The 1st to 4th Applicants (Appellants), acting in person
[1] [2023] HKCFI 2487
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance Cap 115.
[3] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance Cap 383.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.