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HCAL 1531/2019
[2024] HKCFI 1326
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1531 of 2019
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BETWEEN
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Tungpalan Cely Tabieros |
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 4 June 2019 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 1 April 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 July 2018 (the “Notice”).
2. She 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. She had previously worked as a foreign domestic helper in Hong Kong between 1997 and 2005. She last entered Hong Kong on 12 March 2005 as a visitor and was permitted to remain until 19 March 2005. She overstayed and was arrested on 19 September 2006. On 20 October 2006, she raised a torture claim under the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) after a removal order was issued against her. Her Torture Claim was rejected on 27 December 2012. The decision relating to her Torture Claim is now final. Then, she lodged a non-refoulement claim on 24 October 2013. In due course, her non-refoulement claim was assessed on the remaining three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. 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 claims that she will be ill-treated or killed by members of the New People’s Army (“NPA”) upon her return to the Philippines.
5. The Applicant claimed that the NPA was known as the armed wing of the Communist Party of the Philippines. After talks with the government collapsed, it was re-designated as a terrorist organization by the Philippine government under President Rodrigo Duterte in 2017, the United States and European Union. NPA is notorious for collecting so-called ‘revolutionary taxes’ and engaging in violent activities.
6. The Applicant, now aged 58, was born in Cabanbanan Norte, Gonzaga, Cagayan Valley of the Philippines. She received 12 years of education and has completed 2 years of study at Cagayan State University. The Applicant has 11 years of work experience in Singapore and Hong Kong as a foreign domestic helper. She married twice and has six children.
7. She had previously married a farmer (“her former husband”) in 1984. In the same year, while the Applicant was working in Singapore, her former husband was mistaken by the NPA for a police informant. He was kidnapped and later released after proving he was not the person the NPA was looking for. Traumatized by the incident, he moved to Manila three days later.
8. Nothing eventful happened until early 2003 while the Applicant was working in Hong Kong. Her daughter called her and told her that she received a threatening letter demanding 20,000 Philippine pesos. On 3 February 2003, an individual armed with a machete broke into the Applicant’s home to attack the Applicant’s former husband and her son. He was stopped by the shouting of the daughter. That person demanded 20,000 pesos or else he would kill the entire family. He left after threatening to kill them if they reported to the police. A few days later, on 6 February 2003, another break-in occurred at night in which three individuals attempted to steal appliances and jewellery but were scared away by some passers-by. The Applicant returned to the Philippines in March 2003 to relocate her children to Manila and arranged for them to be looked after by her former husband. Then she return to Hong Kong resume her employment.
9. Three years later in 2006, while the Applicant was in Hong Kong, she received a distant telephone call from an unknown man demanding money and threatening to kill her upon her return to the Philippines, if she did not pay. The Applicant was so scared that she hung up and later changed her telephone number.
10. The Applicant attributed all these events in 2003 and in 2006 to acts by members of the NPA. Due to her fear of reprisal from the NPA and her belief that the police would not be able to offer her timely or effective protection, the Applicant did not seek help from the authorities. Moreover, she heard that her aunt had been hanged in the forest after reporting the NPA to the police. The Applicant claimed that internal relocation would not be viable as the NPA could locate her anywhere in the country.
The finding of the Board
11. At the hearing before the Board, the Applicant adopted all the information contained in the hearing bundle. She confirmed that as at the date of hearing, ie 10 December 2018, her family members in the Philippines are all right. The Board assessed her risk of harm on the basis that the events relied on by the Applicant were true.
12. In respect of BOR3 Risk, the Board noted that the Applicant had never come across any member of NPA in the past. The threats she alleged received in 2003 were based on hearsay from her children. She only received one threatening call herself in 2006. But there was no evidence to link any of those threats to the NPA. The break-in in February 2003 looked like a case of burglary rather than an NPA operation. More importantly, her family members were never harmed by the NPA or anybody at all, despite their continued living in the Philippines for the past 12 years (from the date of the last threat in 2006 to the date of the hearing of the appeal in 2018) and without ever acceding to their demands. The threats were just empty threats. The Board therefore found that she would not face any real risk of harm upon her return. Further, on the basis of authoritative and credible country of origin information (“COI”), despite corruption and inefficiency in the police, the Philippine government had been carrying out on-going reforms and taking practical steps to improve police effectiveness and to monitor their conduct. The Board was satisfied that adequate state protection is available in the Philippines.
13. In respect of BOR2 Risk, the Board noted that the Applicant had not made out a case for protection under this head. It is not her case that she is subject to a death sentence or will be at risk of genocide in the Philippines. She has not complained about risk of deprivation of life by the Philippine government. For similar reasons as explained above, adequate state protection is available against possible risks of harm from other sources.
14. In respect of Persecution Risk, the Board found her feared harm did not arise on account of race, religion, nationality, membership of a particular social group or political opinion. Thus, it fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
15. Lastly, the Board found with her age, education and work experience, it would not be unreasonable to expect her to relocate to another city in the Philippines to avoid the risk of harm.
16. For all these reasons, the Board dismissed her appeal and affirmed the decision of the Director in his 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[4].
Grounds for judicial review
18. The Applicant did not advance any grounds for judicial review in the Form 86 but mentioned that in addition to the original reason (presumably meaning her grounds for protection) she had “additional reason why [she] can’t go back” to the Philippines. In her supporting affirmation, she disagreed with the Decision and said internal relocation is not feasible because there are NPA in other parts of the Philippines. She also put forward the fact that she has a daughter in Hong Kong whom she wished to take care of as an additional reason to support her stay in Hong Kong. That presumably is the additional reason she mentioned in the Form 86. Her attachment to her daughter is well understood, but that is not a recognised ground for protection under the USM. She had been invited by the Court via its letter dated 4 October 2023 to advise the Court of her first language and to file submissions. She did not respond. The essence of her complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk of harm if returned to the Philippines. That is not permissible. In the absence of proper or specific grounds of application, the Court in an application for judicial review 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 on the basis of the evidence she presented. The Applicant could not have any complaint against the Board accepting her evidence. However, it found even on that evidence, there was nothing to suggest the threat was related to the NPA and, more importantly, that the risk of harm is real as evidenced by the total absence of execution or attempted execution of the threat whether by the NPA or anyone in the past 12 years. The Board therefore found the threats were empty threats and there was no real risk of harm. As the Applicant bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which 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. 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.
Conclusion
20. For the above reasons, leave to file the leave application out of time and the leave application are refused.
Dated 14th day of May 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 14/5/2024
Tungpalan Cely Tabieros
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 14/5/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12652/18/7/402/F806
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 92/07 (Formerly RBCZ 400/06 Pt. 2)
QA T/C 2252/18 (Formerly RBCZ 2001382/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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”)
[2] 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
[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[4] [2018] HKCA 524 at [14(1)]
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