LORENZO JONALN IBUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1539/2019

[2023] HKCFI 3100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1539 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;

1.   Leave to amend the Form 86 be granted; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 June 2019 for leave to apply for judicial review of the decision of the Immigration Department dated 24 May 2019.

2.  The Applicant is a Philippine national who had worked as a foreign domestic helper in Hong Kong and overstayed when her contract of employment was terminated.  She surrendered to the authorities on 12 April 2017 and raised a non-refoulement claim on 31 July 2017.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]; and was dismissed by the Director of Immigration (the “Director”) by his Notice of Decision dated 8 November 2017 (the “Notice”).  She appealed the Notice. Her appeal was dismissed by the Decision of the Board dated 24 May 2019. 

3.  The Director had never made any decision in respect of the Applicant dated 24 May 2019 and the decision dated 24 May 2019 in respect which the Applicant seeks judicial review is only referable to the decision of the Board of that date dismissing her appeal against the Director’s Notice (the “Decision”).  She actually annexed a copy of that Decision in her supporting affirmation.  It is amply clear that that Decision is the decision in respect of which relief is sought by the Applicant.  Hence, leave is granted to amend her Form 86 by naming the Board as the proposed respondent and the Decision of the Board dated 24 May 2019 as the decision in respect of which relief is sought. 

4.  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.  

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 claims that she would be harmed or killed by her husband, if refouled, because of her extra-marital affairs.

6.  The Applicant, now aged 47, was born in Ilocos Sur, Philippines.  She completed ten years of education and had 14 years of working experience as a foreign domestic helper in Hong Kong. 

7.  In 1995, the Applicant married her husband who is a farmer.  She gave birth to their first child in 1996.  In 1997, she started working as a foreign domestic helper in Hong Kong.  Before her departure for Hong Kong, she had a violent argument with her husband.  Her husband assaulted her, leaving her with multiple bruises over her face, arms, and body.  She sought medical treatment but did not report the incident to the police on her mother’s advice and also because she was then preparing to leave for Hong Kong.  She resided at her mother’s house for several months until her departure for Hong Kong.

8.  While working in Hong Kong, the Applicant developed an affair with a Nepalese man in 2011 and subsequently bore him two girls.  After she gave birth to her second child in Hong Kong, she started receiving threats from her husband.  The threats began with abusive calls and later turned into daily text messages threatening to kill her and her children if she came back to the Philippines.  She did not respond to his messages. 

9.  The Applicant’s mother informed her through telephone calls in 2016 and 2017 that her husband was angry and had threatened to kill the Applicant if he saw her; that he had visited her family home; and that he threatened her mother about the Applicant’s affair in Hong Kong.  Though her husband did nothing to her mother, her mother advised her that it would not be safe for her to return. 

10.  The Applicant’s first child told the Applicant in around September 2017 that her husband was still angry with the Applicant and had vowed to kill the Applicant upon her return to the Philippines; that he abused her constantly; and refused to let the Applicant’s mother take care of her.

11.  The Applicant claims that state protection is not accessible because she was not well off (presumably meaning being unable to bribe the police for their protection).  She believes she could not avoid her husband by internal relocation because he could with his friends locate her anywhere in the Philippines.

The finding of the Board

12.  Except for the issues of whether the Applicant was genuinely in fear of her safety and on availability of state protection, the Board assessed the Applicant’s claim primarily on the basis of her case as she asserted.

13.  The Board noted that the Applicant became an over-stayer since 23 October 2011 and claims to have been threatened by her husband since 2012.  However, she chose not to seek protection until 2017.  The Board considered her five years’ delay in seeking protection suggested that her claimed fear for her safety was not genuinely held.

14.  The Board noted the Applicant’s complaint about non-availability of state protection because of corruption is supported by country of origin information (“COI”).  However, it also found conflicting COI suggesting on-going reforms and that the government has taken practical steps to improve police effectiveness and to monitor their conduct.  But no conclusion one way or the other seems to have been made by the Board.

15.  The Board found in all these years the husband had done nothing to the Applicant or her mother in the Philippines.  It found his threats were merely empty threats which the husband had no intention to execute.  The risk of harm posed by the husband was low.  It also found the injuries suffered by the Applicant was not serious.

16.  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 claims for protection under any of the four applicable grounds under the USM.  The Board found the Applicant is not entitled to protection under BOR 3 Risk ground because the risk of harm posed by the husband was low and the feared ill-treatment did not attain a minimum level of severity.  It also found there is nothing in her case that supports a claim under BOR 2 Risk ground.  It found the Applicant’s feared ill-treatment from her husband arose out of a domestic dispute and fell outside the meaning of ‘torture’ under Section 37U(1) of the Immigration Ordinance.  She is therefore not entitled to protection under the Torture Risk ground.  For the same reason, the feared ill-treatment was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion.  Her claim under this head falls outside the protection of Persecution Risk ground.

17.  The Board rejected the Applicant’s claim that her husband could with his friends locate her anywhere in the Philippines as there is no evidence that with his background he is resourceful enough to do so.  On the contrary, it found with her age and experience, the Applicant should have no difficulty to work and live in any place in the Philippines.

18.  For all these reasons, the Board found the Applicant’s claim fails on all applicable grounds and rejected her appeal.

The legal principles applicable to judicial review

19.  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

20.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she said she would like to reject the decision made by the Immigration Department (which is actually referable to the Decision of the Board) because it disregarded her dangerous situation.  She also annexed a copy of the Decision.  In effect, she is seeking to challenge the Board’s finding of fact that her life would not be at real risk if she is refouled to the Philippines.  For reasons as explained in the preceding 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

21.  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 Torture Risk, Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

22.  Except on the issues of whether the Applicant was in genuine fear of her safety and feasibility of internal relocation (which have no significant impact on the Board’s Decision), the Board assessed the Applicant’s claim primarily on the basis of her case as she asserted.  It was on that basis that the Board found her feared risk of ill-treatment is low or unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation.  Most importantly, it found as a matter of law she is not entitled to non-refoulement protection under any of the four applicable grounds.  Accordingly, the Board came to the conclusion that the Applicant’s claim failed.  These are finding of facts and of the law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim primarily 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

23.  For the above reasons, leave is granted to amend the Form 86 by substituting the Board as the proposed respondent and its Decision as the decision in respect of which relief is sought; and the application for leave to apply for judicial review as amended 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

[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 33 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)]