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HCAL 2314/2023
[2024] HKCFI 883
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2314 of 2023
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BETWEEN
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Bolante Ivy Joy Villanueva |
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 be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 21 December 2023 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 17 October 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 September 2019 (the “Notice”).
2. The Applicant requested an oral hearing of her leave application. An oral hearing was held on 23 February 2024 in which she attended. By a letter dated 28 February 2024, she applied to withdraw her leave application. However, when her letter reached this Court, a decision had been made on her leave application. The order and Form CALL-1 were in the course of preparation. As her letter did not contain all the information required to enable this Court to approve her withdrawal application, this Court continued to process her leave application and made no order on her withdrawal application.
3. The Applicant had been employed as a foreign domestic helper in Hong Kong in April 2010. She last entered Hong Kong for employment on 22 April 2014. Her contract of employment was prematurely terminated in October 2015. She did not leave Hong Kong within the prescribed period and overstayed. She was arrested on 14 March 2019 for trafficking in dangerous drugs. On 3 April 2019, 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 (“USM”), 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 claims that she will be harmed or killed by her husband or the Philippines government upon her return because of her drug addiction problem.
6. The Applicant was born in Manila, the Philippines. She received ten years of education and has ten years of working experience as a cashier in the Philippines and as a foreign domestic helper in Saudia Arabia, Taiwan and Hong Kong.
7. She became a drug addict in Hong Kong in around February 2015. After her husband learnt about her drug addiction, he called her in September 2015 and told her not to return home or else he would kill her. After the threatening call, the Applicant still called her husband from time to time to check on their children. Her husband was still angry with her and hung up on her occasionally. She has lost contact with her husband and children since early 2016.
8. The Applicant’s other concern is that she would be killed by the Philippines government on her return because of its campaign against drugs (the “Drug War”).
The finding of the Board
9. Despite some inconsistencies in her evidence, the Board found the Applicant to be generally credible and accepted the centrepiece of her claim. It assessed her entitlement to non-refoulement protection on the basis of the case as she asserted.
10. In respect of the fear of harm from her husband, the Board accepted that her husband had threatened to kill her if she returned to their home in the Philippines. The Board found “home” in that context means her husband’s parents’ home where her husband and their children live and any place where her husband might encounter her during his daily routines, ie the city of Iriga and not everywhere in the Philippines. The threat is limited to the situation when she returns to the Philippines and makes contact with their children. Even if the threat was not thus limited, the Board found it highly unlikely, given his alcohol addiction, intermittent work and marginal livelihood, his lack of drive or ambition and his desire to distance himself and their children from the Applicant, that her husband has the animus, motivation and means to locate her outside where he was residing. In either case, the Board found the Applicant would not face any real risk of harm from her husband if she lived away from her children. This finding applies to all the four applicable grounds in respect of the risk of harm from her husband.
11. In relation to her fear from the Philippines government, the Board extensively researched into authoritative and credible country of origin information (“COI”) about the Drug War in the Philippines under President Duerte’s administration between July 2015 and June 2022 and under President Marco’s current administration. There are reports about extrajudicial killing of drug users and dealers under President Duerte’s administration. The COI suggests that the primary focus of law enforcement agencies in the Drug War is at people actively trafficking or using dangerous drugs and that the overwhelming characteristics of victims of extrajudicial killings are male, low l3evel drug dealers, in their 20s or 30s, and actively involved in selling drugs. The Board accepted the Applicant’s fear of harm was real when she decided not to return to the Philippines in around 2019. But as the Applicant is female with no history of drug dealing in the Philippines, the Board consider it is unlikely that she will be made a target of the Drug War.
12. The Board found that under President Marcos’ current administration, the nature and target of the Drug War underwent significant changes. The Drug War is being conducted lawfully in accordance with the constitution; there is no report of incitement to kill by the president; and the government’s focus shifted from elimination of drug users and dealers to reducing demand for drugs, rehabilitation and socio-economic development. The brutality of the Drug War initiated by President Duerte was mitigated by President Marcos’ rehabilitative approach. The Board considered the Applicant’s risk of harmed under the current government is low.
13. The COI shows that 50% of the reported extrajudicial killings are concentrated in four provinces or cities and 80% are located in 15 provinces or cities, while 43 of a total of 82 provinces did not report any extrajudicial killings. As it is unlikely that these 43 provinces are drug free, the Board found the drug enforcement agencies in these provinces operate to a different standard and these provinces are safe for people who feel they are at risk.
14. The Applicant has no record of drug abuse or dealing in the Philippines and the Director will not disclose her record of drug activities in Hong Kong to the Philippines authorities. Hence, the Board found she will not face any real risk of harm or death in the Philippines for her historical drug addiction and conviction in Hong Kong.
15. On the basis of these findings, the Board further found: (1) the Applicant is not a member of a particular social group within the meaning of the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle her to protection under Persecution Risk ground; (2) there is no risk that the Applicant will face a genuine and substantial risk of torture, or physical or mental ill-treatment by the police or other government agents related to her history of drug addiction or trafficking in Hong Kong as would entitle her to protection under BOR 3 and BOR 2 Risk grounds; and (3) that there are no substantial grounds for believing the Applicant would be subject to torture as defined by section 37U of the Immigration Ordinance as to entitle her to protection under Torture Risk ground.
16. Hence, the Board dismissed the Applicant’s appeal against the Director’s Notice.
Legal principles applicable to judicial review
17. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, 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 advance any grounds for judicial review in her Form 86. In her supporting affirmation, she annexed a copy of the Board’s Decision and a statement of grounds. In her statement of grounds, she reiterated her fears of harm or death from the Philippines government and her husband. In essence, she is seeking to challenge the Board’s finding of fact that she would not be at risk of harm or death from her husband or the Philippines government on her return to the Philippines, which is impermissible save for errors of law, procedural unfairness or irrationality. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on these usual challenges.
Discussion and conclusion
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.
20. The Board assessed the Applicant’s claim on the basis of the case as she asserted. These are the Board’s finding of facts which the Applicant could have no complaint. On the basis of her evidence, the Board made a further finding that her husband will not harm her if she keeps herself out of contact with their children. In addition, on the basis of authoritative and credible country of origin information, the Board is satisfied that the nature and target of the Drug War which is the only source of the Applicant’s fear of harm from the Philippines government have significantly changed under President Marcos’ administration such that her risk of harm on her return now to the Philippines is low. These are also finding of fact solely within the province of the Board which the Court on a judicial review will not interfere.
21. It was on the basis of these facts, that the Board further found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are 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 they are finding of the law and application of the law to the facts found, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
22. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 22nd day of March 2024.
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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 his 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 22/3/2024
Bolante Ivy Joy Villanueva
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 22/3/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16398
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 583/19 (Formerly RBCZ 10409/19)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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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