UBONGEN LEANNE PALMA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 300/2019 and HCAL 818/2022

[2023] HKCFI 2504

Heard together

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 300 of 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 818 of 2022

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 Applicants in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  These are two applications for leave to apply for judicial review brought by Ubongen Leanne Palma on behalf of herself (the “Mother”) and her son (the “Son”) under HCAL 300/2019 (the “2019 Application”) and on behalf of her daughter (the “Daughter”) under HCAL 818/2022 (the “2022 Application”).  Because of the commonality in the issues raised by these two applications, they were ordered to be heard together.

2.  The Mother is a Philippine national.  She last entered Hong Kong on 12 April 2014 as a visitor.  She overstayed and was arrested on 23 June 2015.  On 26 June 2015, she raised a non-refoulement claim for herself.  Subsequently, she raised a claim for her Son on 11 October 2016 and for her Daughter on 22 June 2020.  In due course, their non-refoulement claims were 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].  By his Notice of Decision dated 26 January 2018 (the “2018 Notice”), the Director of Immigration (the “Director”) rejected the Mother’s and Son’s claims.  The Daughter’s claim was rejected by the Director’s Notice of Decision dated 25 January 2021 (the “2021 Notice”).  Their appeals against the two Notices were dismissed by the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) by its decision dated 9 November 2018 (the “2018 Decision”) and 23 May 2022 (the “2022 Decision”) respectively.  In the 2019 Application, the Mother and her Son sought leave to apply for judicial review of the 2018 Decision.  In the 2022 Application, the Mother on behalf of the Daughter sought leave to apply for judicial review of the 2022 Decision.

3.  As the Son and the Daughter are minors, the Mother who represented them had been advised by letters of this Court dated 28 April 2022 in HCAL 300/2019 and dated 15 December 2022 in HCAL 818/2022 to seek legal representation whether by the Duty Lawyer Service or private solicitors.  They did not respond and continued to act in person.  No memorandum of application for legal aid had been received from the Director of Legal Aid.  Having considered the merits of the application, the Court considered the absence of legal representation a mere irregularity and that the leave applications may be justly determined without the applicants being legally represented.  An oral hearing was scheduled and attended by all applicants.  The Court proceeded to make the following determination.

The Applicants’ case

4.  The following account of the applicants’ case is mainly based on information in the non-refoulement claim forms (“NCFs”) prepared with legal assistance by the Mother on behalf of herself, her Son and her Daughter and the record of her screening interviews in the presence of their lawyer.  In gist, the Mother claimed that they would be harmed or killed by her husband (the “Husband”), if refouled to the Philippines. They also feared that they would suffer discrimination in the Philippines as the Son and Daughter were born outside of wedlock.

5.  The Mother had received twelve years of education and had worked as a researcher, domestic helper in the Philippines and a foreign domestic helper in Hong Kong.  She married her Husband in 2002 and gave birth to three children in the Philippines.  Her Husband was a drug addict and alcoholic.  He assaulted her and caused her injuries on numerous occasions since 2003, usually when he was under the influence of drugs or alcohol.  The most serious incident occurred in 2005 when he kicked her in the face.  The Mother treated her injuries at home as she was afraid it might provoke her Husband further if she left her home for treatment. Usually, it took her weeks to recover.  In late 2012, because of her unemployment and her continuing quarrel with her Husband, the Mother went to work as a domestic helper in Hong Kong to support the family and to escape from her Husband.

6.  The Mother returned to the Philippines on 30 November 2013.  Thinking that she had gone to Hong Kong to escape from him and to have an affair, her Husband beat her and threatened to kill her if she returned to Hong Kong.  Nevertheless, the Mother disregarded the threat and returned to Hong Kong in late March 2014 to take up her second employment contract.  That contract was, however, prematurely terminated.  When the Mother informed her Husband about the termination, he accused her of going to Hong Kong for having an affair and not for work.  He sent her messages via Facebook threatening to kill her.  The Mother closed her Facebook account to avoid communication with him.  There was no further contact between them since until 2018.  Then, the Mother developed a relationship with a Nigerian and gave birth to the Son on 15 August 2016 and the Daughter on 13 March 2020. 

7.  After the Mother re-opened her Facebook account to contact her three children in the Philippines in 2018, her Husband used the children’s account to send her insulting and threatening messages.  The essence of the threats is that he would kill her if she returned to the Philippines.   Then the Mother blocked the account to avoid further communication with her Husband and unblocked it when she needed to talk to the three children.  In October 2020, her Husband used the children’s account to send her insulting and hatred messages.  Since then, the Mother closed the account and cut off contact with her three children.  She had no updates about her Husband.  Her husband had never attempted to reach the Mother’s family members in the Philippines.  The Mother believed the only reason for her Husband’s rage was that she had given birth to the Son with another man.  She confirmed that her Husband did not know about the birth of the Daughter, but believed he would seriously harm or kill her and her Daughter, if he found out her new relationship.  But she has no knowledge of her Husband’s whereabouts and if he is still actively pursuing her or the Daughter.  She is not sure if he would find them, if they are refouled to the Philippines.  

8.  She is also concerned that her Son and Daughter will suffer discrimination in the Philippines because they were born outside of wedlock.  She believes the police in the Philippines would be unsympathetic towards them and she had no money to bribe the police for their assistance.  She does not think relocation within the Philippines feasible due to language barriers and lack of support for her children.  But she confirmed that it would be difficult but not impossible for her and her Daughter to relocate to other cities in the Philippines.

The Board’s finding in the 2018 Decision

9.  The Mother testified on behalf of herself and the Son in the appeal.  The Board found serious inconsistencies between her testimony before the Board and her evidence in her NCFs and screening interviews as to suggest that she exaggerated her evidence in the NCFs to bolster her claim.  For example, the Mother told the Board that her Husband only gave disheartening remarks and threatened to destroy her travel documents so that she could not leave the Philippines to go to Hong Kong and there were no threats to kill at all.  She also told the Board, contrary to what she said in the NCFs, that when she called her Husband in March 2014, her Husband only asked for money but did not threaten to kill her.  She also agreed with the Board that there was no reliable evidence that her Husband was still actively pursuing her to harm her and her Son. 

10.  The Board accepted that the Husband had verbally abused and assaulted the Mother but found that the ill-treatment was domestic in nature; did not attain the minimum level of severity; and that the intensity and frequency of the ill-treatment was low. It found that her Husband had not threatened to kill her or had made death threats to her via Facebook as there was no evidence of such messages.  It found even if her Husband had, he had no intention to carry out those threats.  It also found that the Mother and her Husband had lost contact with each other since early 2014.

11.  The Board found the Husband was not a state actor and that no police, public official, or persons able to wield the authority of the government and/or state had any connection with or influence over him.  It found that the authorities had not acquiesced in the ill-treatment of the Mother; that the ill-treatment had no relevance to the interest and/or benefit of the Philippine government; and that the ill-treatment was not inflicted with an intention listed in the definition of torture in section 37U of the Immigration Ordinance. 

12.  On the basis of authoritative and credible country of origin information (“COI”), the Board found that though the Philippine police had problem with corruption and may not be totally effective, there is evidence that the state had taken action to combat corruption and improve police effectiveness.  The Board is satisfied that there is a system of protection available to victims of domestic violence.  It was only the Mother’s volition not to access the protection and not that such protection is not available.   The Board also found there was no or no reliable evidence that the state was unwilling to help the Mother for a reason under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

13.  The Board held that the above finding in relation to the Mother was also applicable to the Son.  As there was no evidence that the husband even knew about the Son’s birth or that the Son had adverse personal experience in the Philippines, the Board found that the Son’s alleged fear of harm or ill-treatment by the Husband is mere speculation. There is no evidence that the Son may be at particular risk of discrimination as an illegitimate child.  Even if he may, the Board found on the basis of the COI that assistance is available from a number of organizations and bodies committed to helping women and children in situations such as theirs.

14.  Applying the law applicable to non-refoulement protection to the above facts, the Board found both the Mother and Son had failed to prove their entitlement to protection under any of the applicable grounds under the USM and hence dismissed their appeal against the 2018 Notice. 

The Board’s finding in the 2022 Decision

15.  The Daughter’s appeal was heard by the same adjudicator who made the 2018 Decision.  Her case is also founded on her Mother’s and the Son’s case as summarised above plus her Mother’s NCF and record of screening interview prepared in support of her case. Her Mother also testified on the Daughter’s behalf in the appeal.  While the Board is conscious that the principles of res judicata or issue estoppel are not applicable to the Daughter’s case, its assessment of her Mother’s evidence in the 2018 Decision remained relevant.  It made similar finding of facts in relation to the pre-2018 events.  It found that though the Mother had been ill-treated, battered or threatened, she did not suffer ill-treatment of the requisite severity; that the ill-treatment was domestic in nature; and that the intensity and frequency of ill-treatment were on the low side.  The Board accepted the Mother’s evidence about the post-2018 events insofar as they were supported by credible evidence and not her own beliefs.

16.  The Mother claimed that the Philippine society will discriminate her and her Daughter because her Daughter was born outside of wedlock and she had no money to bribe the police for their protection.  She was unable to illicit and illustrate to the Board what specific acts of discrimination her Daughter would be subjected to and admitted that she did not actually know if her Daughter would be discriminated.  She also confirmed that it would be difficult but not impossible for her and her Daughter to relocate to other cities in the Philippines.

17.  The Board found there was no or no reliable evidence that the Husband knew about the existence of the Daughter; and that his threatening messages in 2020 did not relate to the Daughter and did not direct any particular harm or threat at her personally.  There was no or no reliable evidence that the Daughter had adverse personal experience in the Philippines in the past.  The Board found the Daughter’s alleged fear of harm or ill-treatment from the Husband speculative and not well-founded.

18.  Accepting the Mother’s evidence that the risk of harm from her Husband was solely due to his hatred and anger on the Mother, the Board found that the issue between the Husband and the Daughter is private and personal in nature and the Husband had no intention to kill her.

19.  On the basis of the COI and for similar reasons as stated in the 2018 Decision, the Board found that despite there are problems in the Philippine police, systemic protection is, nevertheless, available in the Philippines and there is nothing to suggest that the Daughter could not access it.

20.  The Board found there was no evidence that the Daughter would be subjected to discrimination, if refouled.  Further, as the COI shows that illegitimate children are in fact the majority in the Philippines, the Board found it unlikely that the Daughter would be at risk of discrimination.  In addition, according to the COI, child-specific protection system is well in place and available in the Philippines to protect children from discrimination. 

21.  The Board found there was no evidence that the authorities had acquiesced in the alleged ill-treatment of the Mother; or that the alleged ill-treatments had any relevance to the interest and/or benefit of the Philippine government; or that the alleged ill-treatment was inflicted on the Mother with an intention listed in the definition of torture in section 37U of the Immigration Ordinance.

22.  The Board also found that Mother and Daughter could relocate to other parts of the Philippines, such as Davao or Quezon to lower the perceived risk of harm from the Husband.

23.  Applying the law applicable to non-refoulement protection to the above facts, the Board found the Mother had failed to prove her Daughter’s entitlement to protection under any of the applicable grounds and hence dismissed her Daughter’s appeal against the 2020 Notice.

 Legal principles applicable to judicial review

24.  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

25.  At the hearing, after explaining the above principles to the applicants, the Mother confirmed that she had no complaint about procedural unfairness or irrationality in the Decisions.  She said she had no legal knowledge and would leave the issue of error of law to the Court to decide. 

26.  The applicants had not advanced any grounds for judicial review in their respective Form 86.  In their supporting affirmations filed by the Mother, the only complaint they raised is that the Board disregarded their dangerous situation.  Thus, the essence of their complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country.  In effect, they are seeking to challenge the Board’s finding of fact by way of judicial review.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  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. 

Discussion and conclusion

27.  The Court noted that the claim for non-refoulement protection includes a claim by a minor, ie the Son.  The Mother’s and Son’s claim arose from the same factual matrix, ie the Husband’s threats and ill-treatment of the Mother and the Son’s birth outside of wedlock.  The factual basis of their claim is entirely the same.  The source of feared harm is the same, ie the Husband and the Filipino communities anywhere in the Philippines.  The nature of the feared harm from the Husband is the same, ie physical violence and death.  The nature of the feared harm from the Filipino communities is also the same, ie discrimination for giving birth or being born outside of wedlock.  The Son’s claim is hinged on the Mother’s and stands or falls with it, though some of the harm is specific to the Mother and some is specific to the Son.  However, the Court is well satisfied that the Board had considered all the harm separately and decided the Mother’s and Son’s claim separately according to their own personal circumstances and not as if it were one composite claim.  The Daughter’s claim considered in the 2022 Decision is one made solely on her own behalf.  There is no issue of a composite claim.

28.  Having rigorously examined the two Decisions, 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. 

29.  In the 2018 Decision, the Mother who testified on behalf of herself and the Son had given inconsistent evidence.  The Board found she was not an entirely credible witness and exaggerated her evidence in order to bolster their case.  It accepted most of her evidence about the general setting in which the claim arose, such as the family background, the ill-treatment inflicted on the her by her Husband and his threats, other than the threat of death.  Except for the inconsistencies between her testimony before the Board and her evidence in the NCFs which the Board rejected, the Board basically assessed their claim on the basis of her assertions and authoritative and credible COI, which the Mother did not dispute.  They could have no valid complaint about the Board’s finding of fact.  It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. 

30.  The Mother also testified on behalf of the Daughter in her appeal before the Board.  In the 2022 Decision, the Board made similar finding in respect of the pre-2018 events and accepted the Mother’s evidence about the post-2018 events, insofar as it is supported by credible evidence and not beliefs.  It accepted, for example, her evidence about the threats via Facebook, including threats of death, and her Husband’s ignorance about the existence of the Daughter.  The Daughter could have no valid complaint about the Board’s finding of fact.  Likewise, the Board assessed her claim on the basis of the Mother’s evidence and the COI.  It was on that basis that the Board found that the Daughter failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. 

31.  The Board’s finding in both the 2018 Decision and 2022 Decision are finding of facts and of the law.  Insofar as the finding of facts are concerned, it is based primarily on the Mother’s evidence and the COI.  The applicants could have no valid reasons to complain.  The finding of facts is exclusively within the province of the Board to make, 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 Decisions does satisfy the enhanced Wednesbury test.  They are not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks.  The Decisions are utterly without fault.  The proposed judicial reviews of both Decisions have no realistic prospect of success.   Accordingly, leave to apply for judicial review under both applications 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