MADIAM MARIEGRACE MAUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1841/2019

[2024] HKCFI 2534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1841 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Madiam Mariegrace Maun (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 6 May 2019 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 19 March 2018 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

2.  The Applicant did not attend the court hearing scheduled for 5 September 2024 for her application for leave to apply for judicial review despite notice of hearing having been sent to her on 21 August 2024. I proceed to deal with this application according to papers already placed before the court.

Background of the Applicant

3.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Filipino. She was born on 6 December 1978 in Pampanga, the Philippines.

4.  She received 10 years of education. She had worked as factory worker, chef and foreign domestic helper in Hong Kong.

The Claim

5.  The Applicant relied on the following facts for her claim. She married her husband (“FM”) after meeting him at a factory. They had two daughters and two sons.

6.  FM had physically assaulted the Applicant on multiple occasions in 2010. He used to kick her on her head when he was angry. She did not need to seek any medical treatment and she did not report FM to the Philippine police.

7.  She came to Hong Kong to work as a foreign domestic helper in November 2013.

8.  She met a man (“DKS”) in Hong Kong in May 2016 and started a romantic relationship with him. In June 2016, FM discovered her extra-marital affairs and called her to threaten her that she would be killed upon her return. He also threatened to kill their children. She changed her phone number and did not have any further contact with FM but she had heard about threats from FM to her during conversations with their daughter. Three of her children continued to reside with FM while one of her sons lived with her mother.

9.  The Applicant claimed that she would be harmed or ill-treated by FM if she were returned to the Philippines.

Procedural history

10.  The Applicant’s last employment contract as a foreign domestic helper in Hong Kong was terminated on 3 June 2016 and she left Hong Kong within 2 weeks thereafter. She re-entered Hong Kong on 17 June 2016 as a visitor and was permitted to remain until 1 July 2016. She overstayed in Hong Kong. She was arrested on 7 July 2016 for overstaying by the police and referred to the Immigration Department on 8 July 2016.

11.  By a written representation of 9 July 2016, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

The DOI Decision

15.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that FM intended to harm the Applicant. The Director noted that the Applicant claimed to have suffered injuries from the assaults by FM in the past, but they were not so serious that required medical treatment. Although FM had verbally threatened to kill her, there was insufficient evidence to suggest that FM intended to carry out the threat.

16.  The Applicant’s problem with FM was a private dispute in domestic context. There was no indication that the state was involved in or would provide any form of encouragement to FM in harming or threatening the Applicant.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Philippine police might be hesitant to look into family disputes but there were objective indications in the COI that the Philippine government took steps to improve the police force. The Director found that the Philippine government was able and willing to protect the rights of its citizens.

18.  The Director further found that internal relocation would be viable. If the Applicant moved to Quezon City or Cebu City, FM would have great difficulty in locating her. FM worked as a driver and the Director did not accept that he had the resources or manpower to locate her in every part of the Philippines (§12 of the DOI Decision). After considering her work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  In §§34-68 of the Board’s Decision, the Board discussed in some details evidence given by the Applicant to the Director and the Board. The Board further discussed the credibility of the Applicant in §§69-75 of the Board’s Decision. After considering the Applicant’s evidence given at different stages of the non-refoulement proceedings, including evidence given at hearing before the Board, the Board did not accept that the Applicant was a credible witness and did not accept that aspects of her claims were credible.

21.  The Board noted that the Applicant did not seek protection immediately after FM issued the alleged death threats towards her. Instead, she waited after her arrest to make the claim for protection. In her interview with an immigration officer, she explained that she did not seek protection immediately because she could just ignore FM by changing her phone number. The Board found this to be inconsistent with her claim that she possessed a genuine fear about the threats posed by FM.

22.  The Applicant claimed that FM had attacked her in the past and issued verbal threats against her. Her claim was not corroborated by any documentary evidence and her response to the questions by the Board on those aspects of her evidence was unclear and evasive (§74 of the Board’s Decision). In the circumstances, the Board did not accept her evidence to be credible. The Board did not accept that FM had issued death threats towards her in the past or that FM had told their daughter about his intention to harm her upon her return (§76 of the Board’s Decision).

23.  Because the Board held that the Applicant was not at risk from FM, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return.

24.  Furthermore, the Board was of the view that COI materials suggested that if the Applicant returned to the Philippines, there would be a reasonable level of state protection available to her if she feared harm on the basis of her claims.

25.  The Board further believed that it would be reasonable for the Applicant to relocate to larger population centres such as Manila or Quezon City if she returned to the Philippines and feared harm from her husband in her home area.

26.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

27.  In a judicial review, the court does not step into the shoes of the decision makers.

28.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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”.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.  In the Form 86, the Applicant did not specify any grounds for her intended judicial review.

31.  In the Supporting Affirmation, the Applicant only stated that:

“ I am the applicant herein. In the order give to the court a more complete picture about my case that’s why I cannot go back to home country could you please see the exhibit ‘A’ marked total 22 pages.”

32.  The Applicant then exhibited a copy of the Board’s Decision to the Supporting Affirmation without other supporting documents.

33.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

35.  Based on the Board’s findings on the Applicant’s credibility and evidence, the Board did not accept that the Applicant feared harm from FM if she returned to the Philippines or she overstayed unlawfully in Hong Kong because she feared harm from FM if she returned to the Philippines. The Board also did not accept that FM had threatened to kill the Applicant and her children if she returned to the Philippines because of her claimed extra-marital affairs. The Board also did not accept the Applicant’s claims that she suffered harm from FM when she was in the Philippines.

36.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

Conclusion

37.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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

Form CALL-1