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HCAL 1532/2023
[2023] HKCFI 3362
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1532 of 2023
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BETWEEN
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Quiros Rowena Cabonilas |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 30 August 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 31 July 2023 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 May 2023 (the “Notice”). She had not requested an oral hearing.
2. 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 49. She last entered Hong Kong on 4 June 2022 to work as a foreign domestic helper. She overstayed since 19 June 2022. She was arrested on 9 April 2023. On 13 April 2023, 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 lawyer. In gist, she claimed that her husband, who is having an affair with another woman and at the same time is falsely accusing her of having an affair in Hong Kong, has threatened to kill her if she returned to the Philippines.
6. The Applicant was born in Valenzuela City, the Philippines. She moved to Manila around 1980. She is married and has two sons and a daughter, all of whom are living in the Philippines. She had about 12 years of formal education and had about 22 years of working experience as a domestic helper in Hong Kong intermittently.
7. Her dispute with her husband began approximately in 2015 when her best friend and her in-laws informed her over the phone that her husband was having an affair with a woman (“MC”). MC came from a police family. Her late husband was also a police officer. MC was the village treasurer and a well-known and influential woman in the local area. When the Applicant returned to the Philippines for vacation in 2015, her husband asked if she had a boyfriend in Hong Kong. When she denied, her husband assaulted her. This happened a few times before the Applicant returned to Hong Kong.
8. The Applicant returned to the Philippines for vacation in 2016. Her husband accused her of having a boyfriend in Hong Kong. She denied and replied that she knew he had a mistress in the Philippines. The argument escalated. Her husband assaulted her and kicked her out of the matrimonial home. The Applicant stayed in her mother’s home for about five days.
9. When the Applicant went back to her home to collect some clothes, she saw MC’s cousin at the door. Anger at the sight of MC with her husband in their matrimonial home, the Applicant accused her husband of wanting to kill her so that he could be with MC. Her husband threatened to harm her if she made a scandal and to kill her if she did not leave the Philippines and go back to Hong Kong. Neither MC nor her cousins said or did anything during the incident.
10. The Applicant returned to work in Hong Kong. She left her youngest daughter to the care of her mother. Her two elder sons had moved out for work reasons. She called her husband twice a month to check if he was supporting their daughter. Since 2020, when her daughter ceased attending school, she also ceased contact with her husband. She did not return to the Philippines when her visa expired for fear of being harmed by her husband. She does not think she could relocate elsewhere in the Philippines because her husband can with MC’s contacts locate her. She did not think she could access police protection for the same reason.
The finding of the Board
11. The Board accepted the bulk of the Applicant’s evidence as genuine, such as the attacks by her husband and her subjective fear of harm from her husband and MC, even though details of her subjective fear from MC was only provided during her testimony before the Board.
12. The Board noted that although MC disliked the Applicant and warned the Applicant against returning to the Philippines, MC never made any concrete threat towards her. Further, the Applicant herself considered the marriage was at an end and gave up reuniting with her husband. Hence, there was no reason for MC to target her. The Board therefore found the alleged threat from MC was more speculative than real.
13. As for the perceived threats from her husband, it found that the injuries inflicted by her husband were not serious. Although he threatened to kill the Applicant during the altercation in 2015 or 2016, it was uttered during a moment of anger. He knew the Applicant was staying with her mother after the altercation. He could have gone there to carry out the threat but he did not. That showed that the death threat was an empty one. Further, the Applicant ceased face-to-face contact with her husband since 2016 and stopped communication with him after 2020. With the passage of time, there was no reason for husband to attack her.
14. The Board therefore concluded that the perceived risks of harm to the Applicant from her husband and MC, upon her return to the Philippines, to be remote.
15. The Board further held that any risk to the Applicant could be avoided by internal relocation to another city in Mindanao. Although the Applicant said she had difficulties relocating to an unfamiliar area where she knew no one, the Board held that being an able-bodied and resourceful woman with years of working experience, it would not be unduly harsh for her to establish a new life in Mindanao.
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 and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
17. 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
18. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she said she was asking for “life (extension to stay) protection under non-refoulement claim”. 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
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 her case as she asserted. It was on that basis that the Board found her feared ill-treatment from her husband and his girlfriend 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 the law.
20. The Board assessed the Applicant’s claim 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. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
Dated 28th day of December 2023.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28/12/2023
Quiros Rowena Cabonilas
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/12/2023
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21824
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 377/23 (Formerly RBCZ 5000352/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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)]
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