CERENEO CHERRIE ANNE GALINDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 521/2024

[2024] HKCFI 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 521 of 2024

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;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  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 March 2024 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 24 November 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 August 2022 (the “Notice”).

2.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing.

3.  The leave application was filed more than four months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than one month out of time. Leave is required to file the leave application out of time.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

5.  As will become obvious from the following analysis, the Applicant’s claim is devoid of merits. Instead of taking time to explore the explanation of the delay with her by way of oral hearing or through correspondence, for expediency reasons the Court proceeded to consider the merits of her leave application.

6.  The Applicant is a Philippine national. She last entered Hong Kong on 11 March 2020 to work as a foreign domestic helper. Her contract was prematurely terminated but she did not leave Hong Kong within the prescribed period. She overstayed and was arrested on 4 June 2022. She raised a non-refoulement claim on the same day.

7.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By his Notice of Decision dated 11 August 2022 (the “Notice”) the Director rejected her claim. 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

8.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed by her neighbour in the Philippines Alex upon her return because she and Alex had a physical altercation.

9.  The Applicant, now aged 34, was born in Jolo Municipality, Sulu Province, the Philippines. She received 11 years of education and has six years of working experience as a cashier, a masseur and a foreign domestic helper. She met her partner in 2014 while working in Manila and they moved to live with his parents in Antipolo City, Rizal Province, the Philippines.

10.  She had a dispute with her neighbour, Alex (whose home was about 10 minutes away by foot) in September 2019. On that day, her four-year daughter returned home crying after going to Alex’s house to play with Alex’s daughter. Her daughter told her that Alex shouted at her. The Applicant went to Alex’s house to understand what had happened. She had an argument with Alex and Alex pulled her hair as she was about to leave her home. She became angry, picked up a wooden pole lying on the ground and hit Alex’s right shoulder with it (“the incident”).

11.  On the same night, Alex’s mother sent her a text message about her attack on Alex and told her that if she showed up again, she might end up getting killed. She texted her back saying it was Alex’s fault. Thereafter Alex’s mother kept sending similar threatening messages to her about three times a week until her departure for Hong Kong in March 2020.

12.  The Applicant did not see Alex or Alex’s mother after the Incident. She did not report Alex’s mother’s threats to the authorities because she was busy with her job application and she knew she would be leaving the Philippines soon. She went to a training centre in Antipolo City in February 2020, where she stayed until coming to Hong Kong in March 2020.

13.  After coming to Hong Kong, Alex’s mother still sent threatening messages to her via Facebook messenger twice a week. She sometimes replied Alex’s mother with an “OK” in an attempt to stop the annoying messages. She blocked Alex’s mother on Facebook about three months later. She did not receive any message from Alex’s mother since then. She confirmed that none of her family member or her partner had been harassed by Alex or her mother.

14.  She does not believe the Philippine police would help her because she had erased all messages from Alex’s mother and the Philippine police would not investigate her complaint without sufficient evidence. She does not believe internal relocation would be viable because she had no money and must return to Antipolo City to live with her children and her partner.

The finding of the Board

15.  The Applicant testified before the Board. She confirmed her evidence as stated in her NCF and the record of the screening interview. But when asked by the Board to update her current situation, she said she had separated with her partner and her children had moved to live with her mother in Zamboanga City since June 2022 to avoid the risk of harm from Alex’s mother (even though this was never raised in the NCF dated 15 July 2022). At that point, she also said it was Alex (not her mother) who threatened her because Alex used her mother’s telephone to send the threatening messages.

16.  Notwithstanding the lack of corroborating evidence and the substantial alteration of key aspects in her case during her testimony before the Board, the Board largely accepted her evidence and assessed her claim on the basis that her claim was true. It found her claim never appeared to be more than an argument in the village which changed materially with the Applicant’s broke up with her partner and the removal of her children to Zamboanga with the consequence that she had no reason to go back to Antipolo, the place of her source of risk of harm.

17.  The Board found that taken at its highest her claim related to a single incident where tempers flared and the Applicant and Alex attacked each other. It found on the basis of authoritative and credible country of origin information (“COI”) that incidents like that were routinely addressed by the local barangay administration which would mediate with the parties. If they did not reconcile the local barangay administration would have the village police keep an eye on the situation.

18.  The Board noted that the incident had occurred about four years ago and the Applicant had lived in her home area peacefully for six months after the incident. It also noted that Alex did not report the Applicant’s attack on her to the police, which would have been a “real [and] effective revenge” on her since a criminal record would have ruined her prospect of working in Hong Kong. In view of the above, the Board found it unlikely that the Applicant would be at risk of harm from Alex upon her return to the Philippines.

19.  Even if there was a valid concern that Alex would harm her, the Applicant could mitigate the risk by relocating to other parts of the Philippines, such as Zamboanga (where her mother lived), Davao City (where her father lived), Panay, Cebu, Negros or Manila with Zamboanga being the obvious choice. The Applicant insisted not to relocate because her partner would not agree. As the Applicant had separated with her partner and her partner was never said to be a source of risk towards her, the Board rejected her concern as speculative.

20.  It further found on the basis of the COI that state protection would be available to her. She could seek help from the local barangay or from the national police if the threats turned out to be more serious.

21.  In respect of Torture Risk ground, the Board found that Alex was not a public official. For that reason alone, the alleged ill-treatment did not fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle the Applicant to protection.

22.  In respect of BOR 2 Risk ground, the Board noted that the Applicant never claimed she faced any risk of capital punishment in the Philippines and her claim could not possibly fall within this heading.

23.  In respect of BOR 3 Risk ground, it found that the risk of harm which the Applicant would face on her return to the Philippines would not meet the minimum level of severity necessary to entitle her to protection.

24.  As for Persecution Risk, the Applicant never claimed that she was threatened on account of her race, religion, nationality, membership of a particular social group or political opinion. Hence, the harm and risk of harm fall outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

25.  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 claim for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

26.  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[6].

Grounds for judicial review

27.  The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she repeated that her life would be in danger if returned to the Philippines. She had been invited by the Court via its letter dated 29 April 2024 to advise the Court of certain information and to file submissions. She responded but did not file any submissions.

28.  The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to the Philippines. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review 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.

Conclusion

29.  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 relating to the four 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.

30.  The Board largely accepted the Applicant’s evidence and assessed her claim on the basis that it was true. The Applicant could not have any complaint about this finding of primary facts. Furthermore, on the basis of the COI, the Board is also satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

31.  For the above reasons, leave to file the Notice of application for leave to apply for judicial review out of time and the Applicant’s leave application are 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