RE PASCUA JENNY LYN DOMINGO

CACV 493/2022

[2023] HKCA 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2022

(ON APPEAL FROM HCAL 2553 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant[1] against the order made by Deputy High Court Judge K W Lung (“Judge”) on 14 December 2022 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 9 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 14 February 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 40, is a fear of being harmed or even killed by her estranged and abusive husband (“Kristian”).

3.  The circumstances giving rise to such alleged fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraph 10 of the Board’s Decision and in gist in [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 dated 14 December 2022, [2022] HKCFI 3681 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant and Kristian were married in about 2003.

(2)  Kristian, a gambler and a drug addict and courier, started to abuse the applicant after the birth of their second child, often after the applicant refused to give him any more money.

(3)  In 2015, the applicant made a complaint to the police about Kristian’s domestic violence as well as the substance abuse and drug trafficking activities by Kristian and his friends.  Although Kristian and his friends were arrested, they were released after only 2 days.

(4)  Thereafter, in one evening, 2 men riding on a motorbike fired gunshots at the applicant’s house while she was at home with her 2 children.  They were fortunately unharmed.  Nonetheless, fearing for her life, the applicant and the children immediately took refuge with a friend, with whom they stayed for a week.

(5)  The applicant did not report the shooting incident to the police.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong on 13 August 2015 to work as a foreign domestic helper until August 2017.  Her contract of employment was terminated prematurely on 12 September 2015.  The applicant should have left Hong Kong within 14 days thereafter.  However, she chose to overstay.  She was arrested by the police on 27 February 2017.

6.  The applicant raised the NRF Claim by written significations dated 13 and 14 March 2017.  She later completed and lodged a non-refoulement claim form dated 10 January 2018 (“NCF”).

Director’s Decision

7.  In addition to the NCF, in processing the NRF Claim, the Director’s representative(s) conducted a screening interview with the applicant on 9 February 2018.  The applicant then had legal advice and representation from a firm of solicitors.

8.  The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

Appeal to Board and Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 10 October 2018, at which the applicant testified before, and answered questions by, the Board.

11.  The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons.

12.  The Board found multiple material, but unexplained, inconsistencies and contradictions in the applicant’s evidence.  The Board did not consider the applicant a credible or reliable witness and rejected her evidence on all the alleged incidents underlying the NRF Claim.  In particular, the Board found the applicant’s account of the timing and nature of the claimed domestic violence to be “vague, lack detail, inconsistent and unconvincing”.Hence, the Board did not accept that the applicant would face any real risk of harm in the event of refoulement.  In any event, the Board considered internal relocation to be viable.

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2553/2018 on 13 November 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any grounds for the proposed judicial review.

14.  The applicant did not ask for an oral hearing.  After considering the papers before him, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [14] – [19] of the Form CALL-1:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

17. There is no valid ground to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to Court of Appeal - grounds of appeal and submission

15.  By the notice of appeal filed herein on 14 December 2022, the applicant appealed against the refusal of leave for judicial review on the ground that she would still be in danger from her husband in the Philippines.

16.  By the written submission lodged on 20 March 2023, the applicant elaborated on societal expectations in the Philippines for wives to endure domestic abuse.  She also pointed out that despite legal reforms intended to combat violence against women and children, most government agencies took the stance that marital conflicts should be resolved within the conjugal home without outside intervention.  In addition, she noted that victim-blaming is commonplace, including among some of her friends and family. Nor is there sufficient support for victims of domestic violence.  The police is reluctant or unable to intervene or provide protection.  And internal relocation is not feasible without a social support network.

17.  The applicant appeared in person at the hearing of the appeal on 18 April 2023.  She had nothing to add in further support of her case.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

18.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

19.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst at [14(2) & (4)].

Appeal has no merit

20.  The question whether the applicant would be at risk of life or torture if she is refouled to the Philippines is a question of fact within the province of the Board (after the Director).  Her much-repeated bare assertion that she would be in danger from her husband if she should return to the Philippines is inconsistent with the findings made at both stages of the unified screening mechanism.

21.  As noted in [13] and [14] above, the applicant had not in the Form 86 or the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in assessing the risk of harm against her.  That being the case, the application for leave to apply for judicial review of the Board’s Decision did not even get off the ground.  The Judge rightly refused leave on the material before him. 

22.  The applicant has not in the notice of appeal or the submission before us (whether written or oral) articulated any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

23.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.

[1] The applicant has mentioned in her written submission dated 20 March 2023 a boy borne to her out of wedlock on 15 October 2020, i.e. after the Board’s Decision.  However, the applicant’s son is not a party to this appeal (or, indeed, the NRF Claim and the application for leave for judicial review below).

[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.