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HCAL 1687/2023
[2025] HKCFI 1143
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1687 of 2023
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BETWEEN
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Manangan Irene Manglicmot |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 20 September 2023 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 27 July 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 May 2023 (the “Notice”), refusing her non-refoulement application.
2. She did not request an oral hearing. However, an oral hearing was scheduled for her by inadvertence. On the day before the hearing, a court staff attempted to contact her on the telephone. The person who answered the call confirmed receipt of the notice of hearing and undertook to inform the Applicant. Nevertheless, she did not appear. She had previously indicated her wish not to have an oral hearing and had confirmed her intention by not turning up at the hearing despite having had notice of the 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.
Background
3. The Applicant is a Philippine national. She first entered Hong Kong to work as a foreign domestic helper in 2007. She overstayed since 28 May 2009. On 9 March 2023, she was arrested by the police for overstaying and referred to the Immigration Department on the following day. She made a non-refoulement claim on 13 March 2023. 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 against 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 non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that if returned to the Philippines, she will be harmed or killed by some criminals for having witnessed a bombing incident in a shopping mall.
5. The Applicant, now aged 49, was born in La Paz, Tarlac, the Philippines. She is married with three children. She had received formal education for 14 years and had five years’ working experience as a salesperson in the Philippines and as a domestic helper in Hong Kong.
6. She claimed that one day in November 2000 at around 4 to 5 pm, as she and her sisters-in-law entered a shopping mall, they witnessed a man suddenly threw a hand grenade towards a nearby escalator. She suffered some injuries from the explosion, and was sent to a hospital for treatment. During her two weeks’ hospitalisation, she was approached by an unknown man, who asked her for details of the incident. The man left straight away after asking the question and she had no chance to answer the question. That was the only encounter she had with that man.
7. After her discharged from the hospital, she travelled to Quezon City and stayed with her sister-in-law’s family. One day in the early morning, their father saw a man loitering near their house for a short time and left. She believed that that man came to the house because she and her sisters-in-law had witnessed the bombing.
8. The Applicant went to study at the Tarlac College of Agriculture in Camiling from 2001 to 2005. Nothing eventful happened during that period of time and she had not reported the incidents to the police.
9. She also claimed that the brother of her father-in-law, who was a police sergeant, was shot dead in 2012 because he was investigating the bombing incident.
10. The Applicant claims that state protection is not available because is police in the Philippines is incompetent. She does not believe internal relocation viable, as the criminals could locate her throughout the country through their powerful network.
The finding of the Board
11. The Applicant testified before the Board. On evidence, the Board found that apart from her one encounter with a stranger in the hospital and the sight of a stranger loitering near the house of her sisters-in-law, nothing had happened to her at all. There was no evidence to suggest that these two strangers had any relationship with the bombing incident. Although she claimed she feared that the bomber might look for her because her name had appeared in the news as a witness of the bombing, nothing had happened to her when she was studying in college from 2001 to 2005 and thereafter. Nothing had happened to her sisters-in-law who witnessed the same bombing with her and they are still staying in the Philippines. The Board considered her belief that the death of her father-in-law’s brother was related to the bombing incident is purely her own speculation which is unsupported by any evidence.
12. On the basis of objective country of origin information, the Board accepted that while there are failures in the police force in the Philippines, there are objective indications that the Philippines government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. Hence, the Board was satisfied that reasonable state protection is available to the Applicant. Furthermore, the Board also found that as an able-bodied person, the Applicant could move to other parts of the Philippines to avoid the perceived risks of harm, which is localised in her home area.
13. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant will be faced with 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 that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
14. 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
15. The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affidavit, she repeated her fear and asked the Court to consider the trauma she suffered as a result of the bombing.
16. Thus, the essence of the Applicant’s ground of application 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, which 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.
Overall scrutiny
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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. 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 not well-founded. 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 four 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 her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, the leave application is refused.
Dated the 20th 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 20/03/2025
Manangan Irene Manglicmot
Applicant’s ref. no:
Nil |
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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 20/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21825
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 324/23 (formerly RBCZ 5000244/23)
Department of Justice,
Senior Assistant Law Officer
(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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