SEBASTIAN IRENE LIZARDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1748/2024

[2025] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1748 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Leave to file the application to apply for judicial review out of time be refused; and

2.  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 October 2024 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 15 February 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 December 2023 (the “Notice”), refusing her non-refoulement application.

2.  The leave application was filed four months and twenty-two days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made two years and five months out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.  Having noted obvious problems in the Decision, the Court considered it would probably be in the interest of justice to consider merits of the leave application before exploring if the Applicant has a reasonable explanation for the delay before refusing the leave application for being filed out of time.

Background

5.  The Applicant is a Philippine national. She last arrived in Hong Kong to take up employment as a foreign domestic helper on 18 January 2022. She overstayed since 3 August 2021. She was arrested on 7 September 2023 by the police for overstaying and referred to the Immigration Department. On 5 September 2023, she raised a non‑refoulement claim. In due course, her non-refoulement claim was assessed on all applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 2 Risk[4]; BOR 3 Risk[5]; and Persecution Risk[6] ground. Her application was rejected 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

6.  The Applicant’s case summarized below is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to the Philippines, she will be harmed or killed by her husband for having developed a relationship with a man older than him and giving birth to a child.

7.  The Applicant, now aged 40, had received ten years’ education and has worked as a domestic helper for about four years in Kuwait and two years in Hong Kong. She has a child with her partner before she married her husband in 2012. She has a son with her husband. She also has a son with her present boyfriend. She has not applied for protection for that son and does not intend to do so.

8.  The Applicant’s husband is a farmer and had a bad temper. Starting from 2017 after she returned from Kuwait, he abused her about twice a month. She sustained bruises but did not seek medical treatment. She reported the incidents to the police which resulted in her husband being detained. However, she bailed him out on both occasions. But, her husband did not change and continued to assault her. She decided to work in Hong Kong to escape from him.

9.  She returned to the Philippines for holiday in October 2019 and stayed in her mother’s home for around three months. She did not encounter her husband in 2019. She learned from her friends that he had left his home town to look for employment elsewhere. She returned to Hong Kong in January 2020 to resume work. She did not divorce her husband in 2020 because there was no divorce in the Philippines and she did not have the money to pay for the legal costs to annul their marriage.

10.  The Applicant developed a relationship with a Filippino boyfriend in Hong Kong. In early 2021, her husband confronted her over the telephone about her relationship with her boyfriend. When she admitted living with her boyfriend, her husband became furious and threatened to kill her if she returned to the Philippines. When she told him that her boyfriend was 55 years old, he became more furious as her boyfriend was even older than him and repeated his threat to kill her. Out of fear, the Applicant hang up and she had no further contact with her husband thereafter. A few days later, her husband’s sister warned her about her husband’s threat. Her husband also repeated the threat to the Applicant’s mother.

11.  The Applicant was very worried about the threat and about being charged with adultery which is a criminal offence under the laws of the Philippines. She does not believe the authorities would help her because her dispute with her husband is a domestic dispute and besides she does not believe the police could provide her with 24 hours a day protection against her husband. She does not believe internal relocation feasible as she does not have the financial means to move and her husband could locate her as he knows all her family members and friends.

The finding of the Board

12.  Having notices obvious problems in the Board’s finding of fact in the Decision, the Court considered it convenient to analyse those problems along with the Decision under this section than to discuss them under a separate section.

13.  The Board’s primary finding is that the Applicant was incredible. Hence, it rejected her evidence about the threat. This must necessarily mean the Applicant had failed to prove the most important factual basis of her claim and her appeal must necessarily fail. The Board also made an alternative finding assuming that the threat was proved, but found she could mitigate the harm and risk of harm by seeking state protection and internal relocation.

14.  On its primary finding, the Board found the Applicant’s case about the alleged threat was vague and unbelievable. It only accepted her evidence about her personal and family background, her education and working history and that she might have a boyfriend in Hong Kong, but rejected her evidence about the threat. On these finding and the fact that nothing happened to the Applicant when she returned to the Philippines for three months in 2019, the Board further found that having regard to the pattern of her husband’s behaviour during the period when the assaults took place and the fact that the Applicant was able to recover within short periods without seeing a doctor, there is no ground to believe that she will be tortured or seriously harmed or be killed by her husband if she is returned to the Philippines.

15.  The Board listed 16 observations in paragraph 31 of its Decision to support its finding of the Applicant’s incredibility. It then held that the number and nature of the inconsistencies and suspicious allegations are sufficiently serious as to undermine her reliability. Most of these 16 observations are in fact the Board’s observations on the Applicant’s evidence or finding of fact, such as the Applicant’s injuries were not serious, the subject matter was a private domestic dispute, that police had detained her husband upon her complaint of domestic violence but she then bailed him out, the Board’s finding of her demeanour and her honesty, the lack of documentary support for her reporting against the husband, her husband being a member of a fraternity group, and the lack of evidence to support her claim that her husband could locate her anywhere in the Philippines, etc. These could not be described as inconsistencies.

16.  What could really be described as inconsistencies are: (1) the Applicant’s evidence that she bailed her husband out and her allegation that state protection is inaccessible; (2) her assertion in the NCF that she came to work in Hong Kong to avoid her husband and her testimony to the Board that that was not the reason for her working in Hong Kong; and (3) her assertion in the NCF that her whole family was against her regarding her relationship with her boyfriend and her testimony that only her husband and her two brothers, but not the whole family were against her. Item (1) is an obvious inconsistency. As for items (2) and (3), there could be many reasons for the inconsistencies. Failure of memory could be a convenient excuse. There may be other innocent reasons to lie. What is important is the significance of the inconsistencies. In the Court’s opinion, the inconsistencies in these two items do not have the effect of damaging the centrepiece of the Applicant’s case, which are (a) the Applicant’s new relationship with another, (b) her husband’s abusive disposition; and (c) her husband’s reaction of to her adulterous conduct. Items (a) and (b) are seemingly accepted by the Board, whereas Item (3) is a finding of fact to be made by the Board on the basis of all the evidence. This Court could not see how the number and nature of the inconsistencies could justify the Board’s adverse comment on the reliability of the Applicant’s evidence.

17.  There are four observations on the Applicant’s case which the Board may regard as suspicious. These are: (1) the Applicant’s return to the Philippines in October 2009 (presumably “2009” is a typographical error and the year should be “2019”) as the Applicant only married her husband in 2012; (2) the threat of being killed because of the issue of the boyfriend could hardly be “reasonable” in the context; (3) divorce is not available in the Philippines and that a marriage could only be resolved by annulment; and (4) the delay in seeking protection in Hong Kong. Divorce, annual. Christian country COI before dismissing as suspicious.

18.  Item (1) could be readily explained. What better could the Applicant have done in between contracts when presumably she had a return air ticket home to see her children, parents and siblings and a ticket back to Hong Kong under her new contract vis-à-vis incurring travelling, board and lodging expenses to stay in Hong Kong or elsewhere other than the Philippines for three months? The Board also failed to take into account the Applicant’s evidence that she stayed in her parent’s home at the time and had never encountered her husband because her husband had left the home town looking for work elsewhere. Besides, at the time, what was haunting the Applicant was just an abusive husband who hitherto only caused her minor injuries. Most importantly, the issue of her boyfriend and the threat to her life had not yet arisen at the time. These are possible and obvious answers which this Court could find on the evidence. They are not the Applicant’s answers. The Board only raised the suspicion, but did not give the Applicant an opportunity to explain nor took a balanced and realistic view of the evidence. It is at least arguable that the Board might have made an error of law by taking into account the Applicant’s circumstances before the threat was made in assessing her credibility and the risk she was facing after the threat was made; and committed procedural unfairness without affording the Applicant an opportunity to explain before rejecting her evidence as incredible or suspicious.

19.  The Board’s view in Item (2) that the threat could hardly be described as “reasonable” is somewhat perplexing to the Court. The evidence seemingly accepted by the Board is that the Applicant confessed to have an on-going relationship with a new boyfriend. This Court agrees with the Board’s view that for a husband to murder his wife for adultery is totally unreasonable and out of proportion to the wrong she has done. However, in assessing risk, the test if not reasonableness but probability. The feeling a husband may have to an intruder to his marriage is a subjective one which depends on the individual and not on the hypothetical reasonable man. It is subjective and not objective. However, murder for infidelity reason is not unheard of even in Hong Kong. A probably contemporaneous and well-reported case is the murder of a Hong Kong air hostess in Taiwan whose murderer was refused entry to Taiwan to submit to jurisdiction by the Taiwanese government for political reasons. Whether the threat had been made is a fact to be found by the Board on a balance of probabilities and not a question of “reasonableness in the context”. It is a question of credibility of the Applicant’s evidence and the probability of the risk to be determined on the basis of the totality of the evidence and not by the reasonable man’s test. It is also arguable that the Board might have made an error of law in adopting the reasonable man’s test in assessing the risk of harm and failing to take relevant matters into account.

20.  As for Item (3), the Applicant’s evidence is that divorce is not available in the Philippines, a marriage may only be dissolved by annulment. This is the Applicant’s evidence. It raises a question of Canon law and religious practice. What she said may well be true because the Philippines is known to be a Christian country. It is difficult to see what is the inconsistency. If the Court was minded to reject that evidence, it has to show by country of origin that that is not the case. Similarly, the Applicant’s assertion that she could not afford the costs of annulment is her evidence. It is for the Board to accept or reject her evidence. There is no issue of inconsistency.

21.  The Applicant has no reasonable explanation for the delay in seeking help. The Board’s adverse inference drawn on the basis of Item (4) is fully justified under section 37ZD of the Immigration Ordinance. But that is only one of the factors to be weighed in its fact finding process.

22.  In the Court’s opinion, the 16 observations in paragraph 31 of the Decision might not justify the Board’s adverse finding of the Applicant’s credibility and reliability. Considering the Applicant’s evidence in the round, this Court considered the Board’s primary finding of her incredibility and the rejection of her evidence about the threat by her husband is problematic and cannot stand for reasons as summarised in the last sentence of paragraphs 13, 15 and 16 above.

23.  The Board had also considered the Applicant’s claim in the alternative on the basis that the threat was proved. It found in paragraph 41 of the Decision that there is no ground to believe that the Applicant will be tortured or seriously harmed or will be killed by her husband, if refouled. The basis of that finding is set out in paragraph 31(b) of the Decision that the Applicant only suffered minor assaults from her husband, that she was able to stay in the Philippines for three months in 2019 and return to Hong Kong in January 2020; in paragraph 31(c) that she was able to obtain police assistance when she reported against her husband; and in paragraph 31(d) that taking into account the frequency, intensity and mode of past ill-treatment from her husband, the extent of her injuries etc, the injuries inflicted upon her did not attain a minimum level of severity.

24.  On the basis of these finding of facts, the Board found the Applicant is not entitled to protection under Torture Risk ground as her risk arose out of a private domestic dispute in which the government was not involved. Despite this Court’s disagreement with the Board’s finding of fact, it has no disagreement with its conclusion as a matter of law and other finding of fact.

25.  The Board found the Applicant is not entitled to protection under BOR 3 Risk ground as the injuries she suffered did not attain a minimum level of severity. In the opinion of this Court, the basis of this alternative finding is also fraud for reasons as explained in paragraphs 15 and 16. The Board used the factual circumstances facing the Applicant before she admitted her extra-marital relations to her husband to assess her risk of harm after her admission of infidelity. Before her admission, the risk she faced was just an abusive husband towards a faultless wife. After her admission, the circumstances changed. She is facing not just an abusive husband, but obviously an abusive and provoked husband towards not an innocent wife, but a wife guilty of infidelity and serious matrimonial misconduct. This Court cannot make any finding of fact as to what in the circumstances the risk may be. But it is at least arguable that the Board erred in taking irrelevant matters, ie the circumstances before the admission, into account and failing to take relevant matters, ie the circumstances post admission, into account and hence erred in finding that the injuries likely to be suffered by the Applicant does not attain a minimum level of severity.

26.  However, the saving grace of the Decision is the finding that state protection is available as shown by the police having detained the husband twice on the complaint of the Applicant and the Board’s finding that the risk is localised and could be avoided by internal relocation and there is nothing to suggest the husband could locate her anywhere in the Philippines. For these and for these reason only, this Court agrees with the Board’s finding that the Applicant could mitigate her risk, whatever the Board may find it to be, by seeking state protection and avoided by internal relocation. Hence, despite this Court’s disagreement with the Board’s finding on the severity of harm likely to be suffered by the Applicant, it agrees with the Board’s conclusion in respect of BOR 3 Risk ground by reason of its finding of availability of state protection and internal relocation.

27.  In respect of BOR 2 Risk ground, the Board found there is no evidence that the Applicant’s life will be at risk of arbitrary deprivation by the Philippines government and refused her claim under this ground. This is a mixed finding of law and of fact which has not been tainted by the arguable error of the Board. This Court has no reason to disagree.

28.  In respect of Persecution Risk ground, the Board found the risk of harm could not have arisen for any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol and hence refused her claim under this ground. This is also a finding of fact and of the law which this Court also agrees.

29.  Thus, despite the Board’s arguable errors, this Court agrees with its conclusion in the Decision.

Legal principles applicable to judicial review

30.  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[7].

Grounds for judicial review

31.  The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affidavit, she repeated her fear of harm from her husband and that she did not want to return to the Philippines. Thus, the essence of the Applicant’s ground of application 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, which is not permissible. In the absence of 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.

Overall scrutiny

32.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied for reasons as stated in the preceding section that despite the various possible errors identified by this Court, the Board’s conclusion in the Decision had not been tainted by errors of law, procedural unfairness and irrationality in the Decision.

33.  In this Court’s opinion, the basis of the Board’s alternative finding is fraud for reasons as explained in paragraphs 15 and 16. It used the factual circumstances facing the Applicant before she admitted her extra-marital relations to her husband. Hitherto, the risk she was facing was just an abusive husband towards a faultless wife. After her admission, the circumstances changed. She was facing not just an abusive husband, but obviously a provoked and abusive husband towards not an innocent wife, but a wife guilty of infidelity and serious matrimonial misconduct. This Court cannot make any finding of fact what in the circumstances the risk may be. But it is at least arguable that the Board erred in taking irrelevant matters, ie the circumstances before the admission, into account and failing to take relevant matters, ie the circumstances post admission, into account. For the same reason, it is also arguable that the Board erred in finding that the injuries likely to be suffered by the Applicant did not attain a minimum level of severity after the admission by forecasting what the injuries would be from the minor injuries suffered by the Applicant before her admission.

34.  The only saving grace of the Decision is the finding that state protection is available as shown by the police having detained the husband twice on the complaint of the Applicant and the Board’s finding that the risk is localised and could be avoided by internal relocation and there is nothing to suggest the husband could locate her anywhere in the Philippines. For these and for these reason only, this Court agrees with the Board’s finding that the Applicant could mitigate her risk, whatever the Board may find it to be, by seeking state protection and avoided by internal relocation.

35.  In addition, this Court also agrees with the Board’s finding that regardless of the arguable errors in the Decision, the Applicant is not entitled as a matter of law to non-refoulement protection under Torture Risk ground due to lack of involvement by the government, or BOR 2 Risk ground due to lack of evidence that her life will be at risk of arbitrary deprivation by the Philippines government and to the Persecution Risk ground as the ill-treatment could not have arisen for any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

Legal principles applicable to judicial review

36.  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[8].

Grounds for judicial review

37.  The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affidavit, she repeated her fear of harm from her husband and that she did not want to return to the Philippines. Thus, the essence of the Applicant’s ground of application 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, which is not permissible. In the absence of 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.

Overall scrutiny

38.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied for reasons as stated in the preceding section that despite the various problems discussed above, the Board’s Decision had not been tainted by errors of law, procedural unfairness and irrationality.

Conclusion

39.  For the above reasons, the leave application has no prospect of success. Accordingly, leave to file the leave application out of time is refused, and the leave application is also 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