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HCAL 2471/2019
[2025] HKCFI 913
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2471 of 2019
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BETWEEN
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Placios Lety Valencia |
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 27 August 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 21 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 February 2017 (the “Notice”), refusing her claim for non-refoulement protection.
Background
2. The Applicant is a Filipino national. She last entered Hong Kong on 8 March 2009 as a visitor. She overstayed since 23 March 2009. On 15 July 2016, she was arrested by the police for overstaying. She made a non-refoulement claim by way of written representations dated 9 and 11 August 2016. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. 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 (the “NCF”) prepared by her with legal assistance and the record of her screening interview (the “ROI”) in the presence of her lawyer. In gist, she claims, if returned to the Philippines, she will be harmed or killed by Zacharias Sadia (“Sadia”), a commander of the New People’s Army (“NPA”) and the NPA. At the hearing before the Board, her counsel submitted that it was open to the Board to consider her claim on humanitarian grounds as the Applicant had contracted human immunodeficiency virus (“HIV”) with acquired immuno-deficiency Syndrome (“AIDS”), hypertension, tuberculosis and other medical conditions in Hong Kong and had medical appointments lined up for her up to 2028.
4. The Applicant, now aged 58, was born in Dunao, Ligao, Albay, the Philippines. She is separated with her husband. Her three children and four siblings are living in the Philippines. She had received ten years’ formal education.
5. The Applicant claimed that she joined the NPA as a member in mid-2004. Her only post in the NPA was a voluntary carer providing care for the sick or the wounded. By mid-2007, she had lost passion serving the NPA. Together with her familial and financial concerns, she expressed her wish to quit the NPA to the Sadia. Upon hearing her request, Sadia became very angry. He yelled at her that “the moment you leave, you will be killed”. He was concerned that she may leak secrets of the NPA once she left. In the heat of the moment, he grabbed her left hand, twisted and broke her wrist forcefully. After she begged for forgiveness and promised not leave, Sadia let go of her hand and warned that she would be killed if she leaves the NPA. After that, she went to a bonesetter for treatment. It took over one month to recover.
6. The Applicant continued working in the NPA to calm Sadia’s mind. But, she had an exit plan. She first hid her children in her mother-in-law’s place, and then gradually faded out from the NPA activities until her complete withdrawal in April 2008. Upon knowing her situation, her friend advised her to work as a domestic helper in Hong Kong, as she would be safe in Hong Kong. She learnt that Sadia had given orders to NPA members to kill her for her betrayal. She therefore hid in her mother-in-law’s place before leaving the Philippines.
7. The Applicant claims that state protection is not available because neither the police nor the authorities in the Philippines would intervene in matters related to NPA. She does not believe internal relocation viable, as she has no relatives or friends to support her.
The finding of the Board
8. The Applicant testified before the Board. The Board found there were inconsistencies in her evidence, which gave rise to a concern that her claims were “at best, exaggerated, and at worst, not truthful”.
9. She stated in her NCF and confirmed at the hearing that she operated a food catering business from her home in Dunao from May 2005 to June 2008. She told the Board that she had no employees and provided meals for teachers and others in the community. Later, when asked to explain how she managed to run her business if she was with the NPA in the mountains from mid-2004 to April 2008, she said she started her business in 2005 and closed it down in 2006.
10. Previously, she said that she was recruited in mid-2004 by her neighbour who was a NPA member in the area. However, she told the Board that she was recruited by Sadia in mid-2004. She said Sadia explained the rules of the NPA to her and recruited her. But at no time did she ever claim the Sadia was her neighbour.
11. She told the Board that she knew how to administer first aid and medical treatment because she did first aid on her children when they were growing up before joining the NPA. But previously, she said that she was directed to receive medical training as soon as she joined the NPA.
12. The Board was also concerned about her apparent lack of knowledge about the NPA, its leadership, its flag, its political alliances, its aims and ideology. For example, she told the Board that the NPA was not attached to any political party. However, on the basis of objective country of origin information (“COI”), the Board found that the NPA is the armed wing of the Communist Party. The Board considered her statements at the hearing were not consistent with what could reasonably be expected from a person who claimed to have spent concentrated periods of time over four years with NPA cadres in their camp in the mountains.
13. On the basis of the COI, the Board accepted that the NPA is particularly active in the Bicol region where they have a strong mass base. Hence, it was not inclined to discount her claims in their entirety, and accepted that between mid-2004 and March 2008, she provided meals for NPA cadres and on occasion prepared meals in an NPA camp in the mountains in the region and that she had interaction with NPA members, but only in that capacity.
14. As for her health issue, such as HIV and AIDS which are of primary concern to the Applicant, the Board found that on the basis of the COI that there are adequate HIV and AIDS treatment centres in the Philippines, and that treatment for HIV/AIDS is widely and freely available in the Philippines. On the evidence, the Board was satisfied that the Applicant would be able to access the medical treatment she requires without undue difficulty in the Philippines.
15. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that she faced a real risk of ill-treatment if refouled to the Philippines. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
16. 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
17. At the hearing, after the above legal principles have been explained to the Applicant, she confirmed she had she had no knowledge of the law and left it to the Court to look for errors of law on her behalf. She only reiterated her danger returning to the Philippines and her need to stay in Hong Kong for medical treatment. She confirmed she had no complaint about procedural unfairness or irrationality in the Decision.
18. However, in her Form 86, she advanced the following six grounds:
(1) the Board unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement (paragraph 1(1) of the grounds);
(2) the Board acted procedurally unfairly (paragraph 1(2) of the grounds);
(3) the Board’s Decision is unreasonable or irrational (paragraph 1(3) of the grounds);
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant (paragraph 1(4) of the grounds);
(5) the Applicant was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submission (paragraph 2(1) of the grounds); and
(6) the Board relied on COI which are not officially recognized or are hearsay or are outdated (paragraph 2(2) of the grounds).
Discussion
19. The grounds provided by the Applicant are very familiar to the Court, as it has seen similar or even identical grounds in other applications. The grounds appear like a template submission without regard to the actual facts of the case. They are worded in broad and general terms and lacking in particulars. The Applicant said the grounds were prepared by a Filipina based on what the Applicant told her. She said she could provide particulars. However, when asked for particulars, she was unable to answer. She did not even seem to understand the grounds. She could only regurgitate her danger returning to the Philippines, her need to stay in Hong Kong for her medical conditions and that she had medical appointments lined up for her up to 2028.
20. For example, she could not even identify the COI she is complaining of in Ground (6). The Board referred to two types of COI, one is related to the NPA, the other is related to her health issues. They are all from authoritative and credible sources, such as Country Information Report – The Philippines published by the Department of Foreign Affairs and Trade of the Australian Government, Mapping Military Organisations – The Communist Party of the Philippines – New People’s Army, published by Standford University, Videos of NPA Flags from Bing.com, Deep roots of revolution: the new People’s army in the Bicol region of the Philippines in the Canadian Journal of Tropical Geography, Vol (2) 2, November 15, 2015, and information from HIV/AIDS & Art Registry of the Philippines, February 2019. They are all recent publications.
21. The only and best particular the Applicant could give is related to Ground (1). She said that the Decision is unreasonable and unfair in that the Board did not allow her to produce photographs of her participation in NPA activities which would support her claim. She said that the photographs were lost in the flood in 2012 or 2013. But her allegation is internally inconsistent because she said she had actually not told the Board about the lost photographs. There could be no procedural unfairness because on her own case, she had not even informed the Board of the photographs and in any event the photographs no longer existed as they had been lost in the flood.
22. In overall terms, apart from vagueness and lacking in particulars, these grounds are direct challenges of the Board’s finding of fact, which is impermissible.
Overall scrutiny
23. 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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability. It accepted part of the Applicant’s evidence, but found her incredible as regards the core issues of her claim. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. 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 his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
24. For the above reasons, the Applicant’s leave application is refused.
Dated the 6th day of March 2025
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(Seline Sze)
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 the Applicant’s 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 06/03/2025
Placios Lety Valencia
Applicant’s ref. no:
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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 06/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6341/17/2/340/F338
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2349/16 (formerly RBCZ/12861/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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 23 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)]
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