PAGURAYAN JAYNE TABUG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1530/2019

[2023] HKCFI 3087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1530 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 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 4 June 2019 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 21 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 July 2018 (the “Notice”). 

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing. 

3.  The Applicant is a Philippine national, now aged 47.  She started working in Hong Kong as a foreign domestic helper on 14 January 2014.  She last entered Hong Kong on 14 November 2014 and was permitted to remain for employment until 10 February 2015.  She overstayed and surrendered to the authorities a year later on 22 February 2016.  On 25 January 2017, she raised a non-refoulement claim.

4.  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

5.  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, if refouled, she would be harmed by a man known as Ka Sammy (“KS”), the head of the New People’s Army (“NPA”) in Isabela, an anti-government organisation in the Philippines.

6.  The Applicant was born in Cabagan Isabela, the Philippines.  She received 11 years of education and had four years of working experience as a chef and a domestic helper. 

7.  At the invitation of her cousin, she joined the NPA towards the end of 2008.  She spent a few months performing tasks such as surveillance for drug abusers and buying food for other members. In mid-2009, she expressed her desire to quit, which was refused by KS.  When she insisted on leaving, KS punched her and incarcerated her in a secluded room in the forest for three days without food and water.  Eventually, her cousin set her free secretly and she escaped without encountering KS or his people.

8.  She suffered bruises and marks on her left upper arm from this incident.  It took her five days to recover.  She hid herself in her cousin’s place in Pena Blanca for approximately a week during which nothing eventful happened.  She returned to her home and stayed for some time before leaving Isabela to hide in Manila.  She went to work in Dubai for three years and returned to Manila in 2013.  Then, she came to work in Hong Kong in January 2014.  She returned to the Philippines in March 2014 when her contract was terminated.  She did not encounter any threats from KS other than on one occasion in July 2014 while she was in Manila.  She said she was told by her sister on the telephone that KS had went to the Applicant’s hometown asking for her whereabouts.  Her sister lied to KS saying that the Applicant was overseas. 

9.  The problem with the last part of her story is that elsewhere she said she came back to Hong Kong to look for a new employer in May 2014 and on the incontrovertible evidence she was in Hong Kong at that time. 

10.  The Applicant was not sure if it would be safe for her to relocate to Manila or Cebu.  She believed the police in the Philippines were corrupt and would not protect her.

The finding of the Board

11.  Except her evidence that KS had attempted to locate her in July 2014, the Board assessed the Applicant’s claim on the basis of the case as she asserted.  It accepted that the Appellant joined the NPA in 2008, was assault and detained by KS when she expressed her desire to quit, managed to escape, and then fled her hometown in Isabela for fear of further harm. 

12.  The Board gave the following reasons in Paragraph 30 of the Decision for rejecting her evidence about KS’s attempt to locate her:

“ 30. However, I do not accept that in 2014, the [Applicant’s sister] told her Mr KS was still looking for her. Firstly, the [Applicant] claims this telephone call occurred in July 2014. At the [screening interview] and also in the hearing she confirmed she was in Manila at the time of receiving [her sister’s] call. But that is not correct. She was in Hong Kong. At the hearing, the [Applicant] later concede she was in Hong Kong in July 2014. Secondly, she told me earlier in the hearing when she was in Manila in 2009 and again in 2013 … she lived with [her sister] in Manila. When I asked how [her sister] in Manila would know Mr KS was looking for the [Applicant] in her hometown, she told me [her sister] learnt that during a visit to their hometown. I am not persuaded by her explanation her relatives in her hometown did not have the [Applicant’s] contact details to inform her directly of the events involving Mr KS. She agreed when I observed her relatives could have contacted her husband and children about that. Nor am I persuaded by her explanation only her children have a mobile telephone because she also agreed her relatives could have easily gone to the home of her husband. These inconsistencies and in her evidence, together with the passage of 5 years between the [Applicant] leaving the NPA in 2009 and the claims Mr KS was looking for her in 2014 cause me to conclude the[Applicant] has fabricated her claims regarding Mr KS looking for her in 2014.”

13.  Having rejected that piece of evidence, the Board found on the balance of her evidence that there was no contact from KS or the NPA since she fled from her hometown in Isabela in 2009. It also accepted the country of origin information (“COI”) that the influence of NPA had been diminished in recent times, particularly outside of Mindanao.  In view of the above and given that the Applicant had done nothing to harm NPA, her relatively insignificant position within NPA and the brief duration of her participation in NPA, the Board found that there was not a real risk of harm from NPA or KS upon her return to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

14.  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

15.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she repeated her fear of being killed by KS or NPA.  She introduced new evidence to amplify her fear by saying that NPA had to kill her because she “[has] some secrets and information about them”.  She also explained her evidence about KS’s attempt to locate her in July 2014.  She said her evidence was that her sister was in Manila at the time, which was then misinterpreted as if she was saying that she was in Manila.  In effect, 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

16.  The Applicant attempts to introduce new evidence about her possession of secrets and information about NPA which heightens her risk.  This is something which she had never mentioned before in the NCF, screening interview or at the oral hearing before the Board.  Not being evidence before the Board, it is not anything which the court in a judicial review need to consider.  The likelihood is that it is another afterthought in an attempt to boost her case of fear of harm and risk of harm. Such secret or information fourteen years ago would be of no value today, anyway.

17.  As for her explanation that the Board had wrongly rejected her evidence based on a misinterpretation, it is totally groundless.  Before this issue of misinterpretation was ever raised, the Board had alerted itself of such risk and took great care to prevent such mistake.  It said in Paragraph 26 of the Decision:

“ 26. The hearing was conducted with the assistance of an interpreter. Where evidence is provided in a language other than an [Applicant’s] first language, or through an interpreter, there is always room for differences in meaning and nuance. I am satisfied the standard of interpreting at the hearing was reasonable and that the [Applicant] was able to communicate effectively, understood the Board’s proceedings and participated in a meaningful way.”

18.  It may be argued that the Board not being familiar with the Applicant’s first language was in no position to make the above judgment.  However, the Board was conscious of such risk and had taken such care to avoid such mistakes from arising.  Furthermore, the question as to where the Applicant was at the time of the 2014 telephone call had been clearly raised in the course of the hearing as is obvious from a reading of Paragraph 30 of the Board’s Decision quoted in Paragraph 12 above.  The Applicant had responded to the Board’s concern.  Had anything gone amiss by way of interpretation, the Applicant, if not the Board, must have noticed it, raised questions and had the wrong put right.  There is no evidence of such. The Applicant’s explanation is just another afterthought.  The Board was well justified to find as it did that the Applicant gave false evidence to boost her claim of risk of harm by fabricating evidence that she was being sought after by KS. 

19.  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 Board assessed the Applicant’s claim wholly on the basis of the case as she asserted, except for that piece of evidence about KS’s attempt to locate her which the Board was entitled to reject.  It was on that basis that the Board found her feared harm or risk of harm is unlikely to materialise; 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.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim substantially (except for KS’s attempt to locate her in 2014) on the factual case as she asserted. The Applicant 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 had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds.  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.  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 her burden of proving her fears and risks.   The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

20.  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