SALICO JONALYN CLAUDEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3228/2019

[2025] HKCFI 3313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3228 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;

1.      Leave to amend the Form 86 be granted; 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 29 October 2019 for leave to apply for judicial review (the “leave application”) of two decisions, namely (1) “6-9-2018 decision dated: 27-8-2018 Ref QA T/C 2550/18” and (2) Ref: USM 13324/18/19/85/F855 Feb 28-2013 to August 27 2018.  She put down “Torture Claim & CIDTP USM” as the name of the proposed respondent. 

2.  The Applicant had requested an oral hearing and an oral hearing had been scheduled for her.  She had never informed the Court of any change of her address.  Notice of hearing had been sent to her by post to her address as stated in her Form 86 which had been confirmed by the Immigration Department last month to be her up-to-date address.  The notice has not been returned through the post.  There is nothing to suggest that she had not received the notice or had moved.  Attempts had been made to contact her on the telephone on the afternoon of 9 and 10 June 2025 to remind her of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant.  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 the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant did not properly identify the decision in respect of which relief is sought or the name of the proposed respondent who should be the decision maker.  The reference number and date of the first decision named by the Applicant is referable to the Notice of Decision of the Director of Immigration (the “Director”) dated 27 August 2018 refusing her claim for non-refoulement protection.  In her supporting affirmation, she annexed a copy of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 21 October 2019 bearing reference number USM 13324/18/19/85/F855 (the “Decision”) and some papers relating to her appeal against the decision of the Director in his Notice of Decision dated 27 August 2018 under reference QA T/C 2550/18 refusing her application for non-refoulement protection (the “Notice”).

4.  The papers revealed that the Applicant is a national of the Republic of Philippines.  She had previously come to work in Hong Kong to work as a foreign domestic helper.  She last entered Hong Kong on 29 September 2012 as a visitor and overstayed since 14 October 2012.  She was arrested for overstaying.  On 9 May 2013, she made a claim for protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”).  Her Torture Claim was rejected by an immigration officer on 28 May 2013.  She did not appeal.  About ten months later, she made a non-refoulement claim.  Her non-refoulement claim was assessed on the remaining three applicable grounds under the Unified Screening Mechanism (the “USM”), namely, BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] grounds.  Her claim was rejected by the Director’s Notice.  Her appeal against that Notice was dismissed by the Board’s Decision. 

5.  The Applicant did not attend the hearing to clarify her intention.  However, piecing all these information together, it is clear that the Applicant’s intention is to seek leave to apply for judicial review of the Board’s Decision dismissing her appeal against the Director’s Notice refusing her application for non-refoulement protection.  In the circumstances and for the benefit of the Applicant, the Court on its own motion amended her Form 86 by naming the Board as the proposed respondent and its Decision as the decision in respect of which relief is sought and the Director as the proposed interested party.  The Applicant is hence applying for leave to apply for judicial review of that Decision.  

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (the “TCF”), supplementary claim form (the “SCF”) 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 the mayor because she was unable to repay her mother’s loan borrowed from the mayor.    

7.  The Applicant, now aged 46, was born and raised in Laguindingan, Misamis Oriental.  She had received ten years’ education and had nine years’ experience including two and a half years’ experience working as a foreign domestic helper in Hong Kong.  She is single. 

8.  In January 2012, the Applicant’s mother borrowed a sum of 200,000 Philippine Peso from the mayor.  Her mother faxed her the loan agreement, and she signed on it as the guarantor.  Since then she remitted HK$3,000 every month to her family in the Philippines for repaying the loan until her contract of employment in Hong Kong was terminated in August 2012. 

9.  Between 19 August 2012 and 25 September 2012, there were three occasions when the mayor’s two personal agents attended her home to demand repayments.  On each occasion, they uttered threats to her without injuring her.  On the last occasion, the agents took some valuable belongings from her home as partial repayment.  There was another occasion in which a running motorcycle stopped in front of her while she was on her way to a shop.  The motorcyclist demanded her to repay the debt, punched her and slapped her, causing bleeding in her mouth.  She learnt that the motorcyclist was hired by the mayor.  On another occasion prior her leaving the Philippines, she ran into the mayor whilst having a walk in town.  The mayor threatened her that if she did not repay the debt, he would run her over on the road.  She returned to Hong Kong in October 2012.  While in Hong Kong, she kept contact with her parents.  They did not tell her if the mayor or his subordinates were still approaching them for the debt. 

Finding of the Board

10.  The Applicant testified before the Board. The Board found multiple and significant inconsistencies among her testimony before the Board, her TCF, SCF and ROI which could not be reconciled by her explanation.  Hereunder are some significant inconsistencies.

11.  In her TCF, the Applicant claimed that her mother had arranged the loan and faxed her a written loan agreement requiring her signature as guarantor.  But she told the Board that it was she who arranged loan, that there was no written agreement and that she had not signed anything.  When confronted with the inconsistencies, she said she no longer had a copy of the loan agreement.  In her TCF, she stated there were initially three visits to the family home and each time by the same two persons allegedly hired by the mayor.   But at the oral hearing, she referred to only two such visits to the family home and said there were as many as five persons sent by the mayor. 

12.  In her TCF, she claimed that there was only one motorbike rider who stopped the bike sharply in front of her, slapped and punched her, and the rider was recognised by the couple who helped her during that incident.  But she told the Board that there were two riders whom she recognised as having been among the people who had previously visited her house.   In her TCF, she said that the mayor merely uttered a verbal threat that he would run her off the road.  But she told the Board that the mayor had in fact tried to run her off the road.

13.  She returned to Hong Kong in October 2012 and purposefully overstayed in circumstances where she knew that non-refoulement protection is available.  Yet, she did not make any enquiries or take any action to make a claim to regularize her status until after she was arrested on 27 December 2012.  The Board considered her conduct inconsistent with that of a person who had genuine fears to return to her home country.

14.  In view of these multiple and significant inconsistencies, the Board found the Applicant had not provided a truthful account.  It came to the conclusion that she had manufactured her account for the purpose of boosting her claim.  The Board found she had failed to establish even to the low standard required the factual basis to support her claim for non-refoulement protection under any of the remaining three applicable grounds under the USM and hence dismissed her appeal against the Notice.

Legal principles applicable to judicial review

15.  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

16.  The Applicant did not advance any grounds of review in her Form 86.  In her supporting affidavit, she stated that she would like to appeal against the Board’s finding because her life would be in danger that she would be ruined upon her return to the Philippines.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm, if returned to her home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. 

Overall scrutiny

17.  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 carefully, tested it against common sense and inherent probability.  It found the Applicant incredible as regards the centerpiece of her claim.  It was not satisfied that she had provided a truthful account.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish even to the low standard required the factual basis to support her 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 in 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, leave was granted to amend the Form 86, but the leave application as amended 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[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 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

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