|
HCAL 1221/2021
[2025] HKCFI 2541
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1221 of 2021
|
BETWEEN
|
| |
Bautista Precilla Norcio |
1st Applicant |
| |
Garcia Precious Kate Athena |
2nd Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the leave application be granted; and
2. The application for leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicants’ amended application by Form 86 filed on 31 August 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 25 June 2021 (the “2021 Decision”) dismissing the 2nd Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 21 September 2020, refusing her application for non-refoulement protection (the “Notice”). The Court noted that the Applicants had made a mistake about the date of the 2021 Decision. When the mistake was drawn to the attention of the 1st Applicant, she agreed to have the date amended. Leave was therefore granted to amend the date of the decision in respect of which relief is sought to 25 June 2021.
2. The 1st Applicant is the mother of the 2nd Applicant. Her non-refoulement claim together with that of the 2nd Applicant’s elder sister had run their full course. The decision of the Board dismissing their claim is final and binding on the 1st Applicant. The 1st Applicant as the mother and representative of the 2nd Applicant is only a nominal applicant in this leave application. She is not entitled to any relief.
Legal representation for the 2nd Applicant
3. As the 2nd Applicant is a minor, the Court explained to the 1st Applicant representing him the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. The 1st Applicant had applied for legal aid from the Legal Aid Department on behalf of herself and the 2nd Applicant, but their applications were rejected. The Court explored the possibility of seeking private legal representation with her. The 1st Applicant said she had no means to engage private lawyer. She said the 2nd Applicant’s claim is based on her claim, she understood her child specific circumstances. She felt she could adequately present her case as well as the 2nd Applicant’s by herself. Having considered the applicable law, the Form 86, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, the 1st Applicant’s expressed intention not to seek private legal representation, and that she had previously represented herself and the 2nd Applicant’s elder sister, the Court was of the opinion that despite the absence of legal representation, the 2nd Applicant’s leave application may be justly determined without prejudicing her interest. The Court therefore considered the absence of legal representation a mere irregularity, which would not render the proceedings void. Hence, the Court proceeded to hear their leave application.
The background
4. The 1st Applicant is a Philippine national, now aged 40. She was married in 2005 in the Philippines and has one child with her husband. She came to work in Hong Kong as a foreign domestic helper in November 2011. She overstayed since 17 October 2017 after her employment was terminated. She surrendered to the Immigration Department on 24 October 2017 and on 7 November 2017, she lodged a non-refoulement claim on behalf of herself and her elder daughter.
5. She claimed that she started a relationship with a Filipino in Hong Kong in 2014 and gave birth to a daughter (the “elder daughter”), ie the 2nd Applicant’s elder sister, in 2016. Shortly after that, her husband found out her affairs and threatened her everyday that he would kill her and her elder daughter if she ever returned to the Philippines. In gist, their claim was that they were in fear of being harmed or killed by the 1st Applicant’s husband because of the 1st Applicant’s extra-marital affairs and her giving birth to the elder daughter out of wedlock. In due course, their claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claim was rejected by the Director. Their appeal against the Director’s decision was dismissed by the Board’s decision dated 4 January 2019 (the “2019 Decision”). As mentioned earlier that decision is now final and binding on the 1st Applicant.
6. In February 2020, the 1st Applicant gave birth to the 2nd Applicant. Likewise, she lodged a non-refoulement claim on behalf of the 2nd Applicant. The 2nd Applicant’s claim was also assessed on all four applicable grounds under the USM and rejected by the Director. Her appeal was dismissed by the Board constituted of the same adjudicator who determined the 1st Applicant’s and her elder daughter’s appeal. The 2nd Applicant now applies for leave to apply for judicial review of the 2021 Decision.
The Applicants’ case
7. At the first hearing on 30 November 2020, the Applicants appeared in person. The 1st Applicant testified. She adopted the information in her written representations, the non-refoulement claim forms (the “NCF”) prepared by herself for the 2nd Applicant with legal assistance and the record of her screening interviews (the “ROI”) in the presence of her lawyer in respect of the 2nd Applicant’s claim; and the notice of appeal, the NCF and ROI in respect of her and her elder daughter’s claim. At the second hearing on 24 May 2021, the Applicants were legally represented. The 1st Applicant elected not to give further evidence.
8. The factual background of the 2nd Applicant’s case has been set out above. In gist, she claims that she and her mother, ie the 1st Applicant, are in fear of being harmed or killed by the 1st Applicant’s husband because of her extra-marital affairs and giving birth to her and her elder sister out of wedlock. According to the 1st Applicant, since learning about the birth of her elder daughter, her husband became furious and threatened everyday to kill her and her elder daughter. She said her husband was a member of a drug dealing street gang active in his local district and in Manila. He told her siblings that he would kill her if he saw her. The 1st Applicant believed that she could not access police assistance without paying a bribe and that internal relocation would not be feasible as her husband could locate her anywhere in the Philippines.
The Board’s finding
9. The Board considered 1st Applicant evasive when she testified before the Board on 30 November 2020. She took time to consider before answering the Board’s question. She was not frank with details and timing of the threats throughout the screening process including the completion of the NCF and attending the screening interview. She admitted she was aware of the availability of non-refoulement protection in Hong Kong, but could not explain why she did not seek assistance until a year after she had been threatened by her husband. She claimed her husband threatened her through messages in Facebook, but could not produce any message claiming that she had deleted them because she did not want them to be seen by those living with her. While accepting that she might not be aware of the evidential value of those messages before she applied for protection, the Board could not accept that she would have erased them when she should have known of their evidential value after the screening interview in October 2018.
10. At the hearing on 24 May 2021, the Board reminded the 1st Applicant to give more information about the 2nd Applicant’s specific risk, if any. Despite that, she gave no further evidence or any evidence relating to the 2nd Applicant’s child-specific risk of harm or her child’s appreciation of factors that may amount to persecution.
11. In conclusion, the Board found the Applicants’ case vague and unbelievable. It considered the nature of the inconsistencies and suspicious allegations are sufficiently serious as to undermine the reliability of her evidence. It had reservation about the allegation that the 1st Applicant’s husband was not happy about her affairs and her giving birth to her two daughters. Even if he was not happy, the Board considered it could not have reasonably given rise to the alleged threats to kill the 1st Applicant and her two daughters. It could find no evidence of any child-specific risk of harm to the 2nd Applicant. The Board considered the 1st Applicant’s fear for the 2nd Applicant is based on her bare assertion instead of real personal experience. It considered the underlying basis of the Applicants’ claim is a personal and private dispute without involving the state. There was no claim that the police or the state would not intervene against the husband’s threat. It did not consider the 1st Applicant’s husband so powerful as could locate her and her daughters anywhere in the Philippines. The 1st Applicant resiled from that position and admitted that her husband did not have influence all over the Philippines. Applying the law applicable to non-refoulement protection, the Board found the Applicants had failed to establish the factual basis to support the 2nd Applicant’s claim for protection under the USM. Hence, it dismissed the Applicants’ appeal.
Legal principles applicable to judicial review
12. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
13. The Applicants did not advance any grounds of review in their leave application. In the 1st Applicant’s supporting affirmation, she said that “she would like to reject” the Decision of the Board. She complained that the Board ignored her dangerous situation and emphasised that she and the 2nd Applicant will be at risk if returned to the Philippines. At the hearing, after the legal principles in the preceding section had been explained to her, the 1st Applicant did not raise any specific grounds but pleaded the Court to help them stay in Hong Kong for their safety. This could not be an arguable ground of judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
14. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The claims of both the 1st and 2nd Applicants are rested on the same factual basis, ie the 1st Applicant’s extra-marital relationship and birth of the 2nd Applicant out of wedlock and that both of them are facing the same harm and risk of harm from the 1st Applicant’s husband. The 2nd Applicant’s claim is hinged on the 1st Applicant’s. Her claim stands or falls together with the 1st Applicant’s. Despite the 1st Applicant’s own claim had been finally determined and dismissed, the Board reconsidered her evidence afresh, although for the same reasons rejected it as incredible and unreliable.
15. The Court is satisfied that the Board had analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible COI. It seemingly accepted that the 1st Applicant’s husband had learned about the news of her affairs and the birth of her elder daughter; but had reservation about the allegation that the the husband was not happy about her affairs and the birth of her two daughters. It found even if he was not happy, that could not have reasonably given rise to the alleged threats to kill the 1st Applicant and her two daughters. These are finding of facts solely for the Board. The Board gave full reasons for its finding. The Board was also mindful of the possibility that the 2nd Applicant might have child-specific risks. It reminded the 1st Applicant of such possibility and invited her to provide information in support of such risks, but she did not give any. It therefore found there was no evidence that the 2nd Applicant would face any child-specific risk, if returned to the Philippines.
16. It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
17. For the above reasons, leave is granted to the Applicants to amend the leave application, but the amended application for leave to apply for judicial review is refused.
Dated the 17th day of June 2025
| |
( Seline Sze )
for Registrar, High Court
|
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 17/06/2025
Bautista Precilla Norcio
Garcia Precious Kate Athena
Applicant’s ref. no: |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12268/18/7/18/F773
USM 12269/18/7/19/F774
USM 17248/20/9/67/F1202
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1854/18 (formerly RBCZ/10119/18)
QA T/C 1839/18 (formerly RBCZ/10120/18)
T/C 411/20 (formerly RBCZ 10356/20) (T2S1)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|