LADIWAN ANGIE LISA SOMEBANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2075/2019

[2024] HKCFI 3174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2075 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Ladiwan Angie Lisa Somebang (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 23 February 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Filipino.  She was born on 23 March 1972 in Madongo Sagada, Mountain Province, the Philippines.  She received 10 years of education and worked as a trader in second-hand apparels between 1998 and 2014.

The Claim

3.  The Applicant relied on the following facts for her claim.  She borrowed 1 million Philippines Pesos (“Loan”) from her sister (“W”) and W’s husband (“B”) in around 2003 or 2004.  The Loan was made verbally and there was no deadline for repayment.  The monthly interest rate was 3% and the Applicant intended to use the money to purchase second-hand goods in Hong Kong.

4.  The Applicant suffered losses in her business, and she was unable to make monthly repayments since around 2005 or 2006.  W, together with W’s brother-in-law (“M”) sometimes harassed the Applicant and threatened to kill her over the phone.  The Applicant had made some small payments which were insufficient to settle the accrued interest.

5.  The Applicant claimed that W, B and M were close friends of the Barangay captain, the mayor and the police.

6.  The Applicant met with W and M in around 2013 to discuss the Loan, when they used abusive words to urge her to pay back the Loan.  The Applicant was not harmed on this occasion.

7.  The harassment continued until May 2014 when the Applicant came to Hong Kong.  After the Applicant came to Hong Kong, W and M had went to the house of her brother (“S”) asking for the Applicant’s contact number.  M fired 2 shots inside the house of S on one occasion. 

8.  B passed away in May 2015 and both W am M blamed the Applicant for B’s demise.  S informed the Applicant about the plan of W and M trying to send 2 men to Hong Kong to harm her.  The plan failed as the 2 men were not allowed to leave the Philippines because of lack of supporting documents.  S also wrote letters (including letters written on 17 April 2017 and in June 2017) to the Applicant about the threats from W and M. 

9.  The Applicant claimed that she would be harmed or killed by W and M if she were returned to the Philippines.

Procedural history

10.  The Applicant arrived in Hong Kong on 16 May 2014 as a visitor.  She was permitted to stay until 20 May 2014.  She overstayed in Hong Kong and surrendered to the Immigration Department on 28 May 2015.  By a written representation of 6 July 2015, the Applicant lodged the Claim.

11.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

12.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

13.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”).  In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

The DOI Decision

14.  The Director did not accept that the Applicant would face a real and personal risk of being subjected to arbitrarily deprivation of life in violation of BOR 2 or harm or ill-treatment prohibited by BOR 3 or torture as defined under section 37U(1) of the Ordinance upon her return to the Philippines.  Her dispute with W and M was of private nature and not related to race, religion, nationality, membership of a particular social group or political opinion and her fear of alleged persecution was not well-founded.

15.  According to the Applicant’s case, W, B and M had never inflicted any violence against the Applicant over the years despite once threatening to hire someone to kill the Applicant if she did not repay the Loan.  The Director was of the view that the low intensity and low frequency of past ill-treatment from W and M was indicative of a small future risk of harm upon the Applicant’s return to the Philippines. 

16.  In the Applicant’s case, there was no indication that the state of the Philippines was involved in, indifferent to or had provided any form of encouragement to W and M in threatening or harming the Applicant.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary.

17.  The Director further found that internal relocation would be viable.  If the Applicant moved to Cebu or Manila, W and M would have great difficulty in locating her.  The Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

18.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

19.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.  It did not accept that the events relied on by the Applicant had taken place.

20.  In §§102-108 of the Board’s Decision, the Board discussed the discrepancies in the Applicant’s oral evidence and documentary evidence.  The Board did not find the Applicant’s evidence to be credible and attached very little weight to it.

21.  According to the Applicant’s evidence, she had only been verbally threatened by W, B and M periodically.  The Board was of the view that such acts or conduct had not attained the degree of “severity” in pain or suffering to fall within the definition of “torture” under section 37U(1) of the Ordinance and there were no public officials being involved.

22.  Because the Board held that the Applicant was not at risk from M or W, who were the only source of risk identified by the Applicant, it found that the Applicant would not face any risk, whether torture risk, persecution risk, BOR 2 risk or BOR 3 risk, upon her return to the Philippines. 

23.  The Board went on to evaluate her claim on the basis that the events she relied on were true.  Regarding state protection, based on COI reports, the Board found that state protection would be available to her should the Applicant actively seek it.

24.  As for internal relocation, the Board found that it would not be unduly harsh to expect her to relocate to other major urban areas of the Philippines (such as Manila, Davao, Cebu City or Zamboanga) to avoid the perceived harm from W and M (§§124-130 of the Board’s Decision).

25.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  The Applicant did not advance any grounds for her intended judicial review in the Form 86.  In the Supporting Affidavit, the Applicant only stated that: “I am applying for judicial review as I am against the decision of the torture claim appeal board, in rejecting my non-refoulement claim.”  She then produced the Board’s Decision as exhibit to the Supporting Affidavit but no other supporting documents. 

30.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

31.  The Applicant attended the court hearing of 17 October 2024 and confirmed that she did not find any error of law, procedural unfairness or irrationality in the DOI Decision or the Board’s Decision.

32.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 high standards of fairness. 

33.  The Board found that the Applicant would not face any of the torture risk, persecution risk, BOR 2 risk or BOR 3 risk upon her return to the Philippines.  She could also safely and reasonably relocate to other areas in the Philippines upon her return to avoid the perceived risk of harm and reasonable state protection would be available to her. 

34.  It was on such 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 under the USM.  These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.  

Conclusion

35.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review

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