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HCAL 376/2019
[2024] HKCFI 839
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 376 of 2019
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BETWEEN
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Busto Jocelyn Manuel |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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:
1. Leave to amend the Form 86 be allowed; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 11 February 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 24 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 May 2018 (the “Notice”). The Applicant named the adjudicator who made the Decision in her personal capacity as the putative respondent. As the Decision is the decision of the Board, the Board should be the proper respondent. Leave is therefore granted to amend the Form 86 by substituting the Board for the adjudicator as the putative respondent.
2. The Applicant is a national of the Philippines. She started working in Hong Kong in 2006 and last entered Hong Kong on 11 December 2014. Her contract of employment was prematurely terminated on 12 February 2016. She overstayed and surrendered to the authorities on 2 June 2016. On 25 July 2016, she raised a non-refoulement claim. 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
3. 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 that she would be harmed or even killed by her husband upon her return to the Philippines.
4. The Applicant, now aged 41, was born in Roxas district, Naguillian, Isabela, the Philippines. She received 12 years of education and has worked as a saleslady in the Philippines from 2006 to 2008 and then as a foreign domestic helper in Hong Kong from 2011 to 2016.
5. She married her husband in 2002 and has two children with him. Her husband was unemployed since 2002. He started assaulting her in 2009 when she was pregnant. He also started abusing drugs in 2010 and assaulted her about three times a week. The Applicant sustained bruises and treated herself at home.
6. In 2010, her husband slapped her face hard, tied a rope around her neck and hurt her badly. The Applicant reported the violence to the police and her husband was detained overnight. The police appeared to have taken no further action and her husband continued to hit her after his release. The Applicant did not make a second report to the police because she was afraid that would only annoy her husband.
7. Later, the Applicant’s husband threatened to kill her. So the Applicant and her children moved to her mother’s home in Isabela. She stayed there for about one year. Her husband visited their children from time to time but she never encountered him. Fearing harm from her husband and in order to earn a living, the Applicant went to work in Hong Kong in late 2011. She returned to the Philippines once in 2015 to see her family. Her husband was not present at that time. Nothing eventful happened during that visit.
8. The Applicant claims that she could not return to the Philippines because she is afraid that her husband would kill her if he saw her. She does not believe state protection would be available, because in the past her husband was released after his arrest. She also did not believe relocation to another city, such as Manila or Cebu, was viable because she does not know anyone in those other cities.
The finding of the Board
9. The Applicant testified before the Board. She gave an account which contradicted her account in her NCF. She claimed that her husband had been violent towards her since one or two months after their marriage. She left him to stay with her mother and avoided seeing him. Then at the suggestion of her husband’s side, she reconciled with him in 2008, but left him again in 2009 to stay with her mother until 2011. She mentioned nothing about her husband’s drug abuse. The 2010 incident mentioned in the NCF during which her husband tied a rope around her neck and for which she made a report to the police flatly contradicted her evidence before the Board that she had left him a second time in 2009. She was unable to provide details about her experience with her husband or give satisfactory and convincing explanation for the inconsistencies. The Board found her evidence to be vague, contradictory and unconvincing. It was not satisfied that she experienced the problems from her husband as she claimed.
10. Even assuming that the Applicant’s case were accepted, the Board found the violence arose in a domestic context when the Applicant was living with her husband and did not accept there is a real chance or real risk that her husband will seriously harm or kill her if she returns to the Philippines. In reaching that conclusion, the Board had placed considerable weight on the Applicant’s own evidence that she had had no interaction with her husband at all since their separation. The Board found the fact that her husband had ample opportunities to execute his threat but he never actually harmed her evinced an absence of real intention in her husband to seriously harm or kill the Applicant. Hence, it found there is no real risk that the Applicant would face any of the proscribed forms of harm from her husband should she return to the Philippines.
11. 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.
Legal principles applicable to judicial review
12. 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
13. The Applicant’s Form 86 included a seventeen-page of grounds of review. Nine out of those seventeen pages are quotations from the conventions, statutes and legal principles from the authorities. One page is about the Applicant’s background. The remaining seven pages contain repetitions and allegations which revolve around misdirection in the law, procedural unfairness, irrationality, the Board’s breach of duty of care owed to an unrepresented claimant, such as insufficient research and inquiry into the country of origin information (“COI”), reliance on irrelevant or outdated COI, ignoring the most updated COI, the Board’s failure to obtain requisite documents, late delivery of the hearing bundle and lack of language assistance. Except for the last two items, the complaints are wholly lacking in particulars. She insisted that the grounds were actually prepared by her but she forgot about the particulars.
14. The Applicant said that the hearing bundle was served on her seven days before the hearing, including an intervening weekend. It is substantially in English which she is not familiar with and she could not afford interpretation service. In Karamjit Singh[6], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community. The Filipino community is probably the largest non-local community in Hong Kong. Indeed, the Applicant was able to file an adequately well written twenty-one page affirmation in English.
15. Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision and the COI. The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service (“DLS”). She knows what is contained in the record of screening interview which she attended with the assistance of an interpreter and legal representation. The record had been read back to her in her own language, and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in her English language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. The Notice and COI are in English and unfortunately have not been translated. The DLS had most probably discussed the contents of the COI with her when representing her before the Director. As mentioned above, she should not do nothing and expect the host country to translate the documents to her as and when she requires. She has to find assistance herself from among her friends and her ethnic community.
16. The Applicant complained that excluding the two-day weekend she only had four days to prepare for the appeal. On the face, a period of five days appears to be short. However, she should not indulge herself for the weekend and forget about her appeal as if she were a tourist visiting Hong Kong. Furthermore, having regard to fact that she should be familiar with what is contained in the hearing bundle, the period is not inadequate. Besides, time should start to run, not from the day of receipt of the hearing bundle, but from the date of receipt of the Notice which she sought to appeal, if she was serious about the appeal. The Notice was issued on 24 May 2018. The oral hearing was held on 22 November 2018. In between, she had almost six months to find out what the appeal bundle is about. In any event, if she need more time for preparation, she could have raised that with the Board at the hearing.
17. Her complaint about the COI is absolutely groundless. The Board’s Decision is basically that the Applicant failed to prove her fears and risks at the hands of her husband. It had not relied on any COI about the country condition which makes it safe for the Applicant to return to the Philippines. On the other hand, the Applicant has not referred the Board or this Court to any COI which the Board failed to consider and which makes it unsafe for her to return. She was unable to provide any particulars in support of her complaint. Hence, there is no substance in the Applicant’s argument that lack of credible COI has resulted in the Board making groundless speculation that it is safe for her to return.
18. Other absolutely groundless complaints about irrationality are the Board’s failure to call for psychological and psychiatric evaluation of the Applicant’s condition or failure to evaluate whether there exists in Philippines a consistent pattern of gross flagrant or mass violations of human rights and failure to assess whether state protection exists in the Philippines. It never was the Applicant’s case that she had suffered such psychological or psychiatric condition and requested but was refused such evaluation or was in fear of harm arising from a consistent pattern of gross flagrant or mass violations of human rights. Also, availability of state protection was not a basis of the Board’s dismissal of her appeal.
19. 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 and conclusion
20. 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.
21. The Board did not dismiss the Applicant’s appeal simply on the basis that it found her incredible and that she failed to prove the factual basis of her claim. It also assessed her claim wholly on the basis of the case as she asserted. It was on that basis that the Board found it unlikely that she will suffer any real risk of harm from her husband on her return to the Philippines. 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 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.
22. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
Dated 19th 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 19/3/2024
Busto Jocelyn Manuel
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 19/3/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11831/18/6/10/F741
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2072/18 (Formerly RBCZ 10255/18)
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)]
[6] CACV 78/2018
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