ILAO CRISTITA BAE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2094/2019

[2025] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2094 of 2019

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

Following;

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Ilao Cristita Bae (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 11 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 3 April 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Filipino. She was born on 5 June 1974 in Ilag San Teodoro of Oriental Mindoro, the Philippines. She received 12 years of education and had 5.5 years of work experience as a foreign domestic helper.

The Claim

3.  The Applicant claimed that she married her husband (“Husband”) in 1993. Husband was a chef in a hotel and his family worked in the government. The Applicant believed Husband’s family was very influential in the Philippines.

4.  The Applicant claimed that Husband was addicted to alcohol. Their relationship turned sour in around 1998 and Husband frequently attacked her when he was drunk. Husband was not afraid of attacking the Applicant in front of their neighbours. Husband had also threatened to kill her.

5.  The Applicant gave details about two specific incidents. The first incident occurred in 1993 when Husband kicked and pushed the Applicant, causing her to miscarry. The second incident occurred in 2012 when Husband attacked the Applicant with a glass, causing a lump on her head and bruises on her face.

6.  The Applicant did not file any complaint to the police against Husband due to his family’s connection with the government. The Applicant had sought legal advice about divorcing Husband, but Husband refused to sign the divorce paper.

7.  The Applicant came to Hong Kong to work as a foreign domestic helper in 2012. Husband did not approve of her decision but did not stop her. The Applicant remitted money to Husband while she was working in Hong Kong. The Applicant returned to the Philippines for vacation in 2017 and Husband attacked her during this period. Husband pushed and slapped her and threatened to kill her if she stayed in the house. The Applicant stopped communicating with Husband after she returned to Hong Kong to work in October 2017.

8.  The Applicant claimed that she would be harmed or killed by Husband if she were returned to the Philippines.

Procedural history

9.  The Applicant last arrived in Hong Kong on 20 October 2017 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 11 March 2018 after the premature termination of her employment. She overstayed and surrendered to the Immigration Department on 5 December 2018.

10.  By written representations dated 7, 14, 15 and 22 January 2019, the Applicant lodged the Claim. The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(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” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); 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 (“Refugees Convention”) (“persecution risk”).

11.  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.

12.  On 22 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 Board as the proposed respondent and the Director as the interested party.

13.  The Applicant was legally represented when she filed the Form 86. On 15 January 2021, the Applicant filed a notice to act in person.

14.  On 18 December 2024, the Applicant filed an affidavit (instead of an affirmation) applying to withdraw her judicial review application as she wanted to return to her country (“Withdrawal Application”).

15.  A hearing was scheduled for 30 December 2024 to deal with the Applicant’s applications. Despite notice of hearing dated 9 December 2024 having been sent to the Applicant, the Applicant failed to attend the scheduled hearing. I proceeded to deal with her applications according to the papers already placed before the court.

The DOI Decision

16.  The Director noted that the low intensity and low frequency of past ill-treatment from Husband was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries she suffered from Husband were not serious. This showed that Husband did not really intend to kill or seriously harm the Applicant.

17.  The Director was of the view that Husband’s family at most might be “influential” in Batangas City but not powerful over the whole country as the Applicant asserted.

18.  There was neither evidence showing any government official or anyone acting in an official capacity had involved in the Applicant’s feared ill-treatment by Husband nor the state was involved in, indifferent to or provided any form of encouragement to Husband in threatening, harming or attacking the Applicant. There was no adduced evidence that the Applicant was a target of the Filipino government nor did they had any adverse interest in her.

19.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Filipino government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary. There were also non-government organizations promoting women’s right and providing assistance to female heads of households and victims of domestic violence.

20.  There was no fact to suggest that Husband would have influence and resources spreading over the whole country of the Philippines for the purposes of locating the Applicant. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Manila or Cebu, Husband would have great difficulties in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

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

The Board’s Decision

22.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant exaggerated and invented the alleged threats from Husband. The Board did not accept that the Applicant was a credible or reliable witness. The Board gave detailed reasons for this finding at §§45-49 of the Board’s Decision.

23.  The Board also rejected the Applicant’s contention that Husband’s family had strong connection with Filipino public officials or had influence over the Filipino government (§§29-34 of the Board’s Decision). The Board found that there was nothing to suggest that state protection would not be available to the Applicant upon her return (§63 of the Board’s Decision).

24.  The Board held that the Applicant’s feared ill-treatment by Husband had nothing to do with any of the reasons referred to in the Refugees Convention, ie race, religion, nationality, membership of a particular social group or political opinion. The Applicant thus failed to establish the persecution risk.

25.  There was no evidence that the Applicant faced any risk of being ill-treated to the extent that would qualify as “torture” under the Ordinance. The Board also did not accept that any Filipino public officials instigated or consented to the ill-treatment on the Applicant. The Board held that the Applicant did not face any risk of torture upon her return.

26.  The Board did not accept that Husband intended to kill the Applicant. It also did not accept that the Filipino government would fail to protect the Applicant if Husband wanted to kill her. There was no reliable evidence that she had suffered ill-treatment of certain severity or gravity. The Board did not find any evidence suggesting that the Applicant was at risk of arbitrary deprivation of life in violation of BOR 2 or at risk of being subjected to the BOR 3 risk, if she were returned to the Philippines.

27.  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

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

29.  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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

30.  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

31.  In the Form 86, the Applicant annexed a statement stating the grounds for her intended judicial review.

32.  The Applicant put forward the following grounds:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable and fair;

(2)  the Board failed to give the Applicant sufficient time and chance to arrange relevant evidence for the Claim and the Appeal;

(3)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(4)  the Director failed to consider or give enough weight to COI in support of the Applicant’s case;

(5)  the Director was unfair and failed to attain the high standards of fairness in not accepting the Applicant’s assertion on corruption and incompetency of the administration in the Philippines.

33.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

34.  In the Form 86, the Applicant raised various complaints against the Director. However, this is an application for leave for judicial review of the Board’s Decision, not the DOI Decision. In §6 of the Board’s Decision, the Board had expressly pointed out that: “The Board’s consideration of the [Applicant’s] case covers all the applicable grounds [under the USM]. Although referred to as an “appeal”, the nature of the consideration of the [Applicant’s] case is a “rehearing” of the decision/determination of the Director. Therefore, on an appeal to the Board, all questions of fact and law are at large. The Hearing before the Board is a hearing de novo.” Errors made by the Director (if any) will not form grounds for judicial review against the Board’s Decision.

35.  In any event, the aforesaid grounds advanced by the Applicant in the Form 86 were without particulars. They were only bare assertions.

36.  In the Form 86, the Applicant referred to “extra-judicial killings such as the applicant may face if he [sic] would be deported to his [sic] country.” This is a case of alleged domestic violence. I do not see how this can be linked to “extra-judicial killings”.

37.  In the Form 86, the Applicant further stated that: “The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles.” In this case, the Applicant alleged that she was assaulted and ill-treated by Husband who was a chef in a hotel. I do not see how such man could be understood as “state law enforcement agencies as well as those in the high ups of political circles.”

38.  It seems that the then legal representatives of the Applicant had just randomly cut and pasted “something” from other unrelated cases to fill up the Form 86.

39.  The Applicant complained that the Board did not allow sufficient time for her to adduce evidence to support her case. The Applicant provided no particulars as to what further evidence she wished to adduce and how the Board had refused to allow time for her to adduce such evidence. In fact, such complaint was inconsistent with the records of the Board. In §25 of the Board’s Decision, the Board recorded that: “the [Applicant] was asked for her comments on the COI referred to by the Board, to provide her with an opportunity to express her views or to refute the COI evidence. During the Hearing she was given opportunities to provide a full and informed explanation of the COI and other aspects of the claim.” This complaint of the Applicant is unsupported and not justified.

40.  In the Form 86, the Applicant complained that the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. Such complaint cannot validly be made against the Board. In §27 of the Board’s Decision, the Board stated that: “A central aspect of the [applicant’s] claim was that [Husband’s] family was wealthy and well connected. This is relevant to her claim because she believed that because of the connections of [Husband’s] family with various government departments, the police would not help her. Therefore, it would be necessary for the Board to consider and assess the connections that the members of the [Husband’s] family had with the authorities in the Philippines.” The Board then went on to analyze Husband’s brothers’ posts in the Filipino government in §§29-34 of the Board’s Decision to reach the conclusion that there was nothing to show that Husband’s brothers would have the ability to use government resources to persecute the Applicant. Relying on this ground to seek judicial review has no merits.

41.  As pointed out in the Nupur Mst case (supra), assessment of COI materials and state protection were primarily within the province of the Board and the Director. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings.

42.  Both the Director and the Board had carefully considered all relevant COI before reaching their respective decisions of refusing the Claim or dismissing the Appeal. I see no merits in the proposed grounds advanced by the Applicant.

43.  The Applicant’s proposed challenge to the findings of fact by the Director and/or the Board is not reasonably arguable.

44.  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.

45.  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.

46.  The Board found that the Applicant had exaggerated the ill-treatment by Husband to a significant degree and did not accept that she was a credible or reliable witness. The Board found no reliable evidence to show that any of Husband’s family had connections with any public official, or persons able to wield the authority of the government and/or state; or that the government and/or state and/or other authorities in the Philippines had acquiesced in the alleged ill-treatment of the Applicant; or that the Applicant had suffered physical and/or mental suffering of the requisite severity; or that Husband ill-treated the Applicant with an intention listed in the definition of “torture” in section 37U of the Ordinance; or that the state or government of the Philippines was unwilling or unable to afford protection to the Applicant; or that the state or government of the Philippines was unwilling to help the Applicant for any of the reasons referred to in Article 33 of the Refugees Convention.

47.  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 proposed judicial review is not reasonably arguable.

The Withdrawal Application

48.  The Applicant subsequently filed the Withdrawal Application on 18 December 2024 stating that she would like to withdraw her judicial review application and return to her country as soon as possible.

49.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

50.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

51.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

52.  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