MARTINEZ ARLYN CASAGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2065/2019

[2024] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2065 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 Martinez Arlyn Casagan (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 June 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 9 June 1983 in Tugue Garao Cagayan, the Philippines.  She received a bachelor’s degree in Science in Education in 2002 and had 13 years of work experience as a foreign domestic helper in Singapore and Hong Kong.

The Claim

3.  The Applicant relied on the following facts for her claim.  She married her husband (“Husband”) in the Philippines before she first came to work in Hong Kong in 2009.  They separated in 2015, and the Applicant intended to seek annulment of the marriage.

4.  The Applicant acquainted to a Hong Kong resident (“PJH”) during her employment in Hong Kong. She gave birth to her son with PJH (“Son”) on 22 February 2016 in Hong Kong. Son is a Hong Kong permanent resident.  The Applicant separated with PJH in June/July 2017.

5.  When the Applicant was about to go back to the Philippines with Son on 12 July 2017, her sister told her that Husband had learned about the Applicant given birth to Son and vowed to kill both of them upon their return.  The Applicant’s sister was concerned with their safety and asked her not to go back to the Philippines. 

6.  The Applicant claimed that she had gone back to the Philippines with Son on seven different occasions in the past and they never encountered Husband.

7.  The Applicant claimed that she would be harmed or killed by Husband if she were returned to the Philippines.

Procedural history

8.  The Applicant worked as a foreign domestic helper in Hong Kong between 2009 and 2017.  She last arrived in Hong Kong on 30 June 2017 as a tourist.  She was permitted to stay in Hong Kong until 14 July 2017.  She overstayed and surrendered to the Immigration Department on 31 July 2017.  By a written representation of 7 November 2017, the Applicant lodged the Claim.

9.  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 (“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”).

10.  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.

11.  On 19 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 both the Director and the Board as the proposed respondents and interested parties.

The DOI Decision

12.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Applicant faced a real and foreseeable risk of being harmed or killed by Husband upon her return to the Philippines.

13.  According to the asserted primary facts of the Applicant’s case, the Applicant had never been physically harmed by Husband.  She was only told by her sister that Husband made claims about harming her and Son if they returned to the Philippines but in fact nothing eventful had happened.  The Director did not accept that the Applicant’s feared ill-treatment or harm, whether physical or mental, attained a minimum level of severity or that it was real or imminent.

14.  The Applicant was able to depart the Philippines using her own passport without any difficulties which suggested that she was not being targeted by the Filipino police or that the Filipino government had adverse interest in her.  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.

15.  The Director further found that internal relocation would be viable.  If the Applicant moved to Quezon City or Davao City, Husband would have great difficulty in locating her.  After considering her age, education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

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

The Board’s Decision

17.  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. 

18.  In §§24-50 of the Board’s Decision, the Board set out in some details evidence given by the Applicant at the hearing before the Board.  Having considered the totality of the evidence before the Board, the Board was not satisfied that the Applicant or Son had ever been threatened with harm or death in the Philippines for any reason, or that she faced a real chance of harm or death from Husband or his networks for any of the reasons claimed. 

19.  The Board noted from the Applicant’s own evidence that her relationship with Husband appeared to have ended long before their last contact in 2015.  The Board did not believe that Husband suddenly became interested in her affairs again in around 2016. The Board asked the Applicant whether she fabricated the alleged threats from Husband to support her claim for protection and the Board considered her reply to be inadequate.  The Board rejected her claim as untruthful and did not accept that Husband had made any threat towards the Applicant or Son in the past.

20.  Because the Board held that the Applicant was not at risk from Husband, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return to the Philippines.

21.  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

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

23.  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”.

24.  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

25.  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 would like to reject and review the decision made by the Torture Claims Appeal Board on my case on 24/5/2019.  They disregard my dangerous situation.”  She then produced the Board’s Decision as exhibit to the Supporting Affidavit but no other supporting documents. 

26.  The Applicant attended the court hearing of 17 October 2024.  She was unable to identify any error of law or procedural unfairness but said that the Board was unreasonable in refusing the Appeal.  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. 

27.  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. 

28.  The Board was not satisfied that the Applicant faced a real chance of harm of any kind in the Philippines in the reasonably foreseeable future for any of the reasons she had claimed.

29.  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.

30.  In September 2024, the Applicant sent to the court some documents showing that she had filed a divorce petition against Husband at the Hong Kong Family Court and that Son was receiving medical treatments in Hong Kong.  The facts that the Applicant is divorcing Husband in Hong Kong or Son has to attend medical treatments in Hong Kong do not assist the Applicant’s application for non-refoulement protection.  

Conclusion

31.  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