GONZALES EBA MALAYO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2273/2020

[2023] HKCFI 3067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2273 of 2020

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 November 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 11 November 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 November 2019 (the “Notice”). 

2.  The Applicant is a Philippine national.  She had worked intermittently in Hong Kong as a foreign domestic helper.  She last entered Hong Kong on 12 November 2016.  She surrendered to the Immigration Department on 15 July 2019 and admitted having entered into a false employment contract.  On 17 July 2019, she was convicted of the offence of making false representation and sentenced to four months’ imprisonment.  On 6 August 2019, she raised a non-refoulement claim.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claimed that she would be harmed or killed by the family members of her debtor Alex to whom she had lent money because they believed Alex had been killed by her.

5.  The Applicant, now aged 47, was born in Bicol Region, the Philippines.  She received eight years of education and had around 22 years of experience working as a part-time factory worker, running a convenience store and as a domestic helper.  

6.  In 2015, the Applicant lent Alex 150,000 Philippines Pesos interest free using Alex's paddy field as collateral.  Alex failed to repay the loan.  However, when she attempted to exercise her right to use the collateral as agreed, Alex’s siblings resisted.

7.  The Applicant approached the Barangay Captain, a local village official, to mediate the situation.  Neither Alex nor his siblings attended the scheduled mediation.  Then, the Applicant reported the case to Cabuyao City police station.  Alex was arrested under the charge of estafa (i.e. the criminal offence of swindling).

8.  At the plea of Alex’s family and on their undertaking to repay by instalments, the Applicant withdrew her complaint and Alex was released.  Alex only made three payments totalling 25,000 pesos and defaulted again.  By that time, ie on 12 November 2016, the Applicant left Philippines to work as a foreign domestic helper in Hong Kong.

9.  In 2018, while working in Hong Kong, the Applicant was informed by her brother that Alex was killed and his siblings vowed to kill her because they believed she was responsible for his death.  Her brother advised her not to return to the Philippines.

10.  The Applicant has not reported these threats to the Philippine police because she believed the police would not follow up on her case.  She did not consider internal relocation feasible because she believes Alex's siblings could locate her wherever she moved to.

The finding of the Board

11.  The Board found the Applicant evasive when giving evidence before the Board.  It found her testimony inherently improbable and her account incredible.  The Applicant said that Alex was a friend of her brother not personally known to her and she had no knowledge of the background of Alex or his family.  The Board felt under such circumstances, if the Applicant had truly lent money to Alex, she would not have failed to enquire into Alex’s background. 

12.  The Applicant also said she did not ask the police about Alex’s background because she was waiting for her employment visa and did not intend to pursue her case against Alex.  The Board found this inconsistent with her evidence about the steps she had taken to seek repayment from Alex.

13.  The Applicant claimed that it was public knowledge that Alex died of drug overdose.  In the circumstances, the Board found it impossible that Alex’s family would have regarded her as the murderer and issued death threats against her.  It also found it unreasonable that the Applicant would have shown no interested in finding about Alex’s death from the Philippines police which would vindicate her of her involvement in Alex’s death and put an end to the death threats.  The Board therefore concluded that it is inherently improbable that the Applicant had been threatened with death by Alex’s family and that her allegation about the threats is an exaggeration. 

14.  Having rejected her evidence about the threat, the Board found the Applicant would not be at risk of any of the proscribed harm upon her return to the Philippines.  The Board also held that even if she were at risk, she is also not entitled to protection under any of the four applicable grounds under the USM.

15.  In respect of Torture Risk ground, the Board found that the harm likely to be inflicted on the Applicant does not meet the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance in that it would not be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

16.  In respect of BOR 2 and BOR 3 Risk grounds, the Board found no evidence of a genuine and substantial risk that the Applicant will suffer significant harm, including arbitrary deprivation of life or cruel inhuman, degrading treatment or punishment, if refuoled. 

17.  In respect of Persecution Risk ground, the Board found that the threat was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.  

18.  Furthermore, based on country of origin information reports, the Board was satisfied that that adequate state protection would be available as evinced by the fact that the Philippines police took action against Alex after receiving the Applicant’s complaint.  It also rejected the Applicant’s claim that Alex’s family would be able to locate her in other parts of the Philippines.  Hence, it found that the Applicant could further avoid the risk by internal relocation. 

19.  For all these reasons, the Board dismissed the Applicant’s appeal.

The legal principles applicable to judicial review

20.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  

Grounds for judicial review

21.  In her Form 86, the Applicant seeks to quash the Decision and asks to have her appeal remitted to another Board for re-consideration.  She did not put forward any grounds of application for judicial review.  In her supporting affirmation, she annexed a copy of the Decision.  Obviously, she disagrees with the Decision.  Insofar as she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to the Philippines, for reasons as explained in the above paragraph, this is not permissible in an application for 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. 

Discussion and conclusion

22.  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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The primary finding of the Board is that the Applicant is incredible and hence failed to prove her harm and risk of harm.  However, in the alternative, the Board also assessed her claim wholly on the basis of her case as she asserted.  It was on that basis that the Board found her feared ill-treatment does not fall within any of the four applicable grounds for protection; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non- refoulement protection under any of the four applicable grounds.  These are finding of facts and of law. 

23.  The Board’s primary finding that the Applicant is incredible and hence failed to establish her claim of fear and risk of harm is a finding of fact which this Court may not interfere, save for errors of law, procedural unfairness or irrationality.  Putting that primary finding aside, the Board’s alternative finding is solely based on the factual case as the Applicant asserted.  She could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that the Board further found the Applicant’s claimed fear of harm and risk fall outside the protection of the four applicable grounds under the USM.  This is a mixed finding of fact and of law.  Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct.

24.  The Court could detect no error of law or procedural unfairness in the Decision, whether in its primary decision or alternative decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

25.  For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.

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