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Appeal court says children claiming torture should be helped by lawyers

03 December 2020

By The SUN                                                                     

The CA ruled that children should have lawyers when their torture claim is heard

The Court of Appeal has ruled that children who are claiming non-refoulement (or against being sent back to their home country) should have legal representation when they appear before the Torture Claims Adjudication Board.

The ruling was laid down in the case of a Filipina overstayer and her two young children who appealed against a Court of First Instance decision denying the mother permission to challenge the TCAB’s ruling in July 2017, rejecting her claim against deportation.

“When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director,” said the CA.

Pindutin para sa detalye

“Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.”

In the CA decision handed down on Nov 27, Arlyn T. Fabio was denied her application for an extension of time to appeal but her children, Rabia and Faheem Salauddin, 9 and 5 years old, were allowed to go back to the Board to present their case.

The CA ruled that the TCAB’s decision in respect to Fabio was not binding on her children, saying “non-refoulement claims by children are separate from that advanced by their parents.”

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In principle, said the CA, the decision should have regard for the personal circumstances of each claimant. It would be an error of law, said the court, to dismiss the children’s claims without considering their own personal situations.

The CA ordered the TCAB to reconsider the claims of the children with legal representation provided for them, in accordance with Order 80 Rule 2 of the Rules of Court.

In the case of their mother, the CA upheld the lower court’s finding that she had abused the system by seeking a judicial review a second time after the first one she filed was dismissed by another judge.

PINDUTIN PARA SA DETALYE

In the first action she filed on Sept 11, 2017, Fabio sought leave for herself only. In the second, filed on Mar 12, 2018, she added her children as applicants.

The court heard the Filipina came to Hong Kong in 2008 to work as a domestic helper but overstayed after her contract was terminated on Oct 9, 2010.

She was allowed to stay until Dec 28, 2010 as a visitor but she did not leave Hong Kong.

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She surrendered on Feb 15, 2011 but was released on recognizance the same day after she applied for non-refoulement. 

She gave birth to Rabia in May of the same year, and Raheem, in January 2015. The children were her daughter with a Muslim torture claimant she met in Hong Kong, and married in June 2010. However, she had been married to her Filipino husband since 1997.

Fabio lodged a non-refoulement claim for herself on Jan 5, 2015 and for her daughters on Sept 5 that year, claiming that if they returned to the Philippines, they would be harmed or even killed by Fabio’s Filipino husband.

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She also claimed her Catholic family in the Philippines did not approve of her marrying a Muslim, and her conversion to Islam.

But the Director dismissed her application in July 2016 and in May 2017, after finding no factual basis to her claims.  

The TCAB upheld the decisions in May 2018, finding that Fabio had ended her relationship with her husband in the Philippines in 2002, and since 2010 and 2011, had lost contact with him.

“Her first marriage clearly effectively broke down some fourteen years ago and the appellant currently knows nothing about her first husband, has no knowledge of his whereabouts or of what he is doing and she has received no threats of any kind from him or from any member of her immediate family,” said the Board in its decision.

On Mar 19, 2018, or eight months since the TCAB’s decision, Fabio went to the High Court to ask for leave for a judicial review.

After an oral hearing on Sept 19 last year, Judge Bruno Chan refused the application, citing the time bar and Fabio’s abuse of the judicial process.

Fabio and her children then filed a notice of appeal against Chan’s decision on Jan 21 this year, saying it was unreasonable as it did not make a proper inquiry into the current situation in the Philippines. 

In dismissing the appeal, the CA said the judge had applied the correct legal principle in holding that Fabio’s application was an abuse of process and should be dismissed.

 The CA’s decision was penned by Appeal Court Vice President M.H. Lam, who heard the appeal along with Judge Aarif Barma and Judge Thomas Au. In coming to its decision, the CA relied partly on submissions from Jin Pao, SC, who acted as amicus curiae, or friend of the court.

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