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HCAL 1602/2019
[2024] HKCFI 925
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1602 of 2019
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BETWEEN
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Chamlangen Norvilyn Tomapang |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“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 12 June 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Immigration Department relating to her refoulement claim. She did not identify the decision.
2. The Applicant is a Philippine national. She entered Hong Kong on 3 June 2015 as a visitor and was permitted to remain until 17 June 2015. She overstayed and was arrested on 21 July 2016. On 23 July 2016, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director of Immigration (the “Director”) via his Notice of Decision dated 29 October 2018 (the “Notice”). Her appeal against the Notice was dismissed by the decision (the “Decision”) of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”). The Court’s inquiries also revealed that the Director had not made any decision in respect of the Applicant dated 3 June 2019, whereas the Board had by its Decision of that date dismissed her appeal against that Notice.
3. In her supporting affirmation, the Applicant mentioned about “to appeal and review” and said she wished “to reject the decision made by the Immigration Department” and she annexed what appears to be part of the hearing bundle in relation to her appeal against the Director’s decision in the Notice before the Board.
4. It is trite law that the decision of the Director in his Notice is not reviewable by judicial process because there are established statutory procedures of appeal to the Board[5] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[6].
5. Drawing the above facts together, it is clear that the Applicant’s intention is to seek leave to judicially review the Decision of the Board dated 3 June 2019. In the light of the decision in Re Moshsin Ali, that is also the only decision in respect of which she may make such an application. Hence, leave is granted for her to amend her Form 86 by substituting the Board for Immigration Department and the Decision as the decision in respect of which relief is sought.
6. 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.
The Applicant’s case
7. 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 claimed that she would be harmed or killed by her ex-partner Reynaldo Dulay (“Reynaldo”) upon her return to the Philippines.
8. The Applicant, now aged 49, was born in Lepanto, Mankayan, Benguet, in the Philippines. She received six years of education. She worked as a hawker between 1993 and 2003 and ran a trading business between 2003 and 2015, importing goods from Hong Kong for sale in the Philippines.
9. She was married and gave birth to a daughter with her husband in 1992. In around 2004, she together with her daughter left her husband to live with Reynaldo in Baguio City. She gave birth to a son with Reynaldo in 2009. Reynaldo had very bad temper. He hit her every night over money disputes. She sustained bruises but did not make any complaint to the authorities.
10. In mid-2012, she overheard Reynaldo’s conversation about trafficking in dangerous drug but was too afraid to report these activities to the authorities. To avoid being hurt by Reynaldo, she moved out of their home with her son and daughter to Greenwater Village in Baguio City.
11. On 27 December 2013, Reynaldo visited her and demanded money from her. When she was unable to provide it, he threatened to burn their son alive. He also hit her and banged her head against the wall. She did not seek any medical treatment.
12. On 28 December 2013, Reynaldo came and asked for money again. The Applicant had no money to give him. When Reynaldo tried to hurt her with a kitchen chopper, she fled and reported the incident to the Baguio City Police Station, which resulted in Reynaldo’s prosecution. Reynaldo begged the Applicant to drop the case against him and promised to support their son. The Applicant agreed and the case was dropped. Nothing eventful happened to her thereafter.
13. However, her friend advised her to leave the Philippines because Reynaldo would come back and ask for more money. She left the Philippines for Hong Kong in June 2015, leaving her son to the care of her daughter.
14. On one occasion after arriving in Hong Kong, the Applicant asked her friend to call her son. Reynaldo, who happened to be visiting their son, seized the phone and threatened to report her to immigration authorities. She believes Reynaldo would kill her if she returns to the Philippines. She did not think the Philippines authorities could protect her and did not consider internal relocation feasible as she had no relatives in other cities.
The finding of the Board
15. The Board noted many inconsistencies in her evidence which is central to her claim. Nonetheless, it gave her the benefit of the doubt and accepted that she had experienced problems with Reynaldo since 2009.
16. However, it rejected her new allegation stated in the Notice of Appeal (“NOA”) that some unknown people had been looking for her and Reynaldo because of Reynaldo’s debt and that she had asked her children to move far away from Baguio City. This is because this new allegation is inconsistent with her testimony to the Board that her children had been living together in the same place in Baguio City since June 2015. The Board found that she fabricated this new allegation to bolster her claim.
17. The Board found the Applicant’s clear testimony before the Board that she had no contact with Reynaldo since she moved out of the home she shared with him in August 2012 completely undermined the credibility of her alleged ill-treatment and harm from Reynaldo after their separation, in particular the two incidents in December 2013. She was unable to explain the inconsistencies. She said she relied on the certificate from Baguio Police Station about the two incidents. What was certified in the certificate was inconsistent with the Applicant’s claim. The certificate provided that on 27 December 2013, the Applicant went to Philex Mines to visit her son who was in the custody of Reynaldo and that on 28 December 2013 that Reynaldo tried to hit the Applicant with a kitchen knife but did not do so and walked away. Again, the Applicant was unable to explain the inconsistencies other than saying she was confused and could no longer recall.
18. The Board found the Applicant’s assertion that she left the Philippines in June 2015 because Reynaldo wanted to reconcile with her and to get back together implausible because on her clear evidence she had no contact with him in that year and a half before she left the Philippines. It also found her subsequent claim that Reynaldo would contact her neighbour and ask them to tell her the moment he found out she was with someone else, he would surely kill her a new assertion never mentioned prior to her testimony before the Board.
19. In view of the above and other inconsistencies in her evidence, the Board doubted whether Reynaldo was still interested in locating or harming the Applicant. It rejected her claim that she had been told that Reynaldo was waiting for her in the Philippines. It did not accept that the Applicant would face any real risk of harm from Reynaldo upon her return. As the Board has dismissed the only factual basis for claiming protection, namely the alleged threats from Reynaldo, the Board found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return.
20. 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 four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
21. 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[7].
Grounds for judicial review
22. The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affidavit, the only complaint she raised was that the Board disregarded her dangerous situation and she annexed a copy of the hearing bundle before the Board. 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 unless the finding involved errors of law, procedural unfairness or irrationality. She had been invited by the Court via its letter dated 15 November 2023 to advise the Court of her first language and to file submissions. She responded but did not file any submissions.
23. 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
24. 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.
25. While accepting that the Applicant had problems with her ex-partner, Reynaldo, the Board found her evidence central to her claim for protection incredible. It rejected those parts of her evidence. The Applicant had therefore failed to establish the factual basis in support of her claim for protection. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. 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 not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. 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. Accordingly, the application for leave to apply for judicial review is refused.
26. For the above reasons, leave to apply for judicial review was refused.
Dated 27th day of March 2024.
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( Allen LEE )
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 27/3/2024
Chamlangen Norvilyn Tomapang
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 27/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14353/18/11/196/F934
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3983/18 (Formerly RBCZ 13201/16)
Department of Justice,
Senior Assistant Law Office
(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 33 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] Section 37ZR of the Immigration Ordinance, Cap. 115
[6] [2018] HKCA 549
[7] [2018] HKCA 524 at [14(1)]
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