BERNAL TESSIE CHRISTINE NAWA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1928/2019

[2024] HKCFI 2987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1928 of 2019

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 the Applicant being absent in open court;

 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 9 July 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 3 July 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 August 2018 (the “Notice”) refusing her claim for non-refoulement protection.

2.  The Applicant had requested an oral hearing.  An oral hearing on 21 October 2024 was scheduled for her and notice of hearing was sent to her by post to the latest address obtained from the Immigration Department on 22 July 2024.  The notice was not returned through the course of mail.  She never informed the court of any subsequent change of address.  There is nothing to suggest that she had not received the notice or had moved.  However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Philippine national.  She last entered Hong Kong on 26 January 2002 as a visitor with permission to stay until 2 February 2002.  She overstayed.  Seven and a half years later, she was arrested by the police on 16 August 2009 for overstaying.  She was subsequently convicted of the offence of breach of condition of stay (overstaying) and was sentenced to 6 month’s imprisonment.  On 30 August 2009, she raised a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Her claim was rejected by the Director on 10 May 2013.  Then, she made a non-refoulement claim under the Unified Screening Mechanism (the “USM”) by way of written significations dated 21 May 2013, 18 June 2013 and 19 June 2013.  In due course, her claim was assessed on the remaining three applicable grounds, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. Her claim was rejected by the Director’s Notice.  Her appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and the Supplementary Claim Form prepared by her with legal assistance and the records of her screening interviews in the presence of her lawyer.  In gist, she claims that she will be harmed or killed by a rice supplier and friend (“Melody”) upon her return to the Philippines for failing to honour her guarantee of a debt owed by another of her friend to Melody.

5.  The Applicant, now aged 66, was born in Sariaya, Quezon Province, the Philippines.  She had 12 years of education and had 7 years of experience working as a domestic helper in Taiwan.  She was separated with her husband.  

6.  She claimed that Melody was one of the main rice suppliers in Dagupan City.  She entered into a consignment arrangement with Melody to sell rice in the city in 2000.  Melody would pay her a fixed price after the rice was sold.  Later, in the same year, she introduced her friend (“Blessie”) to Melody.  The three of them entered into a similar consignment arrangement with the Applicant as guarantor for any debt arising from the arrangement which Blessie may owe to Melody. 

7.  By late 2001, Blessie’s debt owed to Melody reached nearly 2 million pesos.  The Applicant was worried.  In around October 2001, whilst visiting another of her friend, Melody suddenly barged in and pointed a gun at the Applicant’s head threatening to kill her if she failed to settle Blessie’s debt.  After her pleadings, Melody told the Applicant to settle the whole amount by December 2001, failing which she would hire someone to kill the Applicant.  The Applicant agreed and signed a loan receipt for 2 million pesos. After Melody had left, the Applicant then went to Dagupan City police station to report against Melody’s threat.  A formal complaint was lodged, but the police did not take any follow-up actions.  The Applicant also took no follow up action with the police.

8.  One month later, Melody went to the Applicant’s home to remind her of the payment deadline.  Melody threatened that if the Applicant failed to settle the debt, she would face deadly consequences.  The Applicant later went to Blessie’s home in an attempt to hold her responsible for her debt, but was told that Blessie had fled to Singapore.

9.  Out of fear, the Applicant moved to Manila to stay with her friend in January 2002 and then fled to Hong Kong.  Sometime between 2007 and 2008, she learnt from her family that Melody had been to her home to ask for her whereabouts.  She also learnt from her friend that Melody did not stop looking for her, that her photograph was displayed at the NINOY international airport around 2003 to 2004, and that Melody had come to Hong Kong to locate her.

10.  She does not believe the Philippine police would help her, as they are corrupt.  She also does not believe internal relocation feasible because Melody could locate her through her extensive network in the Philippines.

The finding of the Board

11.  The Board assessed the Applicant’s claim on the basis of the case as she asserted.  It noted that the Applicant had not received any threats from Melody over the past 17 years since she arrived in Hong Kong.  In the past 10 years, Melody only made verbal threats directed at the Applicant’s family without doing anything concrete.  At the hearing, the Applicant confirmed that Melody had not send anyone to kill her after she missed the payment deadline in December 2001.  Thus far, she suffered no physical and/or mental suffering at all.  The Board therefore found that she was no longer a target.  It also found her fear of Melody was mere speculation based entirely to hearsay from her friend.  On this premise, the Board was not prepared to give any weight to this evidence, particularly as to the actions allegedly taken by Melody in pursuing her.  It was unable to accept that Melody remained interested in the Applicant or that the Applicant would face similar antagonism many years later. 

12.  The Applicant accepted at the outset of the hearing that the disputes between she and Melody was a monetary dispute in which no official or government authority was involved and Melody was not a state actor.

13.  On the basis of authoritative and credible country of origin information (“COI”), the Board found that although there is evidence of police ineffectiveness in the Philippines, there are objective indications that the government has taken practical steps to maintain public order and safety in its jurisdiction and to improve the effectiveness and monitor police conduct.  It was therefore satisfied that the state was both willing and capable of offering effective protection to its citizens, and state protection would be available if the Applicant so required.

14.  The Board also found that as an able-bodied person, the Applicant could safely relocate to Manila or Quezon City to avoid the perceived risks from Melody, which were localised within Dagupan City.

15.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face any 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 the Applicant had failed to establish the factual basis to support her claims for protection under any of the three applicable grounds.  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[4].

Grounds for judicial review

17.  The Applicant did not advance any grounds for judicial review in the Form 86.  In her supporting affidavit, she stated that she did not agree with the Board’s Decision, and she did not want to go back to her country because she had big problems there.  In effect, these grounds are challenges against the Board’s finding of fact which are not permissible for reasons as explained in the preceding section.  In the absence of specific or valid grounds of application, 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

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the remaining three 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.  The Board assessed the Applicant’s claim on the basis of her case as she asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the remaining three applicable grounds under the USM.  These are finding of facts which are 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.  The Court could detect no error of law 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

19.  For the above reasons, this leave application has no prospect of success.  Accordingly, the leave application is 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

[1]  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”)

[2]  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

[3]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] [2018] HKCA 524 at [14(1)]