HCAL 2482/2018
[2022] HKCFI 2721
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.
BETWEEN
Romulo Jenifer De Guzman
1st Applicant
Rana Gabrielle Jass
2nd Applicant
and
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent
and
Director of Immigration
Putative Interested Party
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge To :
Leave to apply for Judicial Review refused .
Observations for the Applicant:
Introduction
1. This is the Applicants’ application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 24 October 2018 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 January 2018 (the “Notice”). Though the Director is named as a proposed respondent in the backsheet of the affidavit of the 1st Applicant, no relief is sought in respect of the Notice or any decision of the Director.
2. The 1st Applicant is a Philippine national, now aged 46. She entered Hong Kong in around 2012 to work as a foreign domestic helper. She developed a relationship with her current partner and gave birth to the 2nd Applicant on 23 October 2015. Then her employment was prematurely terminated on 28 November 2015. She became an over-stayer since 13 December 2015. She surrendered to the authorities on 26 September 2016. On 3 November 2016, she raised a non-refoulement claim on behalf of herself and her daughter.
3. In due course, their non-refoulement claims were 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] . By his Notice, the Director rejected their claims under all four applicable grounds. They appealed to the Board against the decision of the Director in the Notice. On 24 October 2018, the Board dismissed their appeal by its Decision. On 6 November 2018, they applied for leave to apply for judicial review of the Decision of the Board. The Applicants did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
4. As the 2nd Applicant is a minor, the 1st Applicant who represented her had been advised by letter of this Court dated 4 January 2022 to seek legal representation whether by the Duty Lawyer Service or private solicitors. Seven months have since lapsed. They did not respond. No memorandum of such application for legal aid had been received from the Director of Legal Aid. The Applicants 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 it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she and the 2nd Applicant would be harmed by her former partner (“Solorio”) upon their return because she had given birth to a daughter with another man.
6. The 1st Applicant was born in Manila, the Philippines. She received 19 years of education and has 8 years of working experience in the Philippines as a saleslady and a graphic designer. She gave birth to four children with per partner Solorio in the Philippines. In November 2012, she came to Hong Kong to work as a foreign domestic helper. While in Hong Kong, she developed a relation with her current partner and gave birth to the 2nd Applicant.
7. The 1st Applicant claimed that she met Solorio in 2000 and they started living together. After their first child was born, Solorio became abusive towards her physically and verbally. She suffered bruises from his attacks. Solorio had an affair with another woman and he sometimes neglected financial support to her and their child. The 1st Applicant thought she might have suffered postpartum depression at that time. She sometimes had a fight with Solorio and suffered bruises from the fight.
8. She had an argument with Solorio in around November 2002 when she accused him of being an irresponsible partner and father. He slapped her and twisted her wrists. She suffered bruises on her arm and redness on her face which took her 3 to 5 days to fully recover.
9. She decided to leave Solorio in May 2003 but he refused to let her go. The 1st Applicant became addicted to alcohol and Solorio verbally abused her. Once she became so drunk that she lost consciousness. When she woke up, she found herself naked. She suspected someone had taken advantage of her and she later learnt that Solorio had raped her.
10. She moved to live with her relatives. Solorio came to her relatives’ home every night to harass her. Solorio later softened and pleaded her to return home. For the sake of her children, she agreed.
11. The 1st Applicant had another fight with Solorio in around late October 2003, when she was 7-month pregnant. Solorio knelled on her back and twisted her hands for about 5 minutes and she suffered fracture on her right arm. She was taken to a hospital.
12. The 1st Applicant complained about the attack to the community head of her area but she decided discontinue her complaint because Solorio agreed to pay for her medical expenses and also because she had no money to pursue her case.
13. In around June 2004, the 1st Applicant had an argument with Solorio and their relationship worsened. Solorio occasionally raped her. She sought help from her father who was a resident in Hong Kong. His father suggested her to come to Hong Kong. She took a trip to Hong Kong to visit her father.
14. She returned to Philippines and gave birth to her third and fourth children with Solorio in 2005 and 2007. She could not stand Solorio any longer and went to Hong Kong to work as a foreign domestic helper in 2012.
15. The 1st Applicant went back to the Philippines in July 2015 while she was pregnant with the 2nd Applicant. Upon learning that she was having a baby with another man, Solorio became angry and threatened to kill her and her baby. He slapped and pushed her. She fell on the ground and had vaginal bleeding. She immediately arranged for her return to Hong Kong and never saw Solorio since.
16. She did not believe the Philippine police would protect her, as they will classify the dispute as family dispute. She also did not believe she could move to other parts of the Philippines because Solorio knew her relatives and friends and could easily find her. Further, she would have difficulty in relocating to those cities where she had not resided before.
The finding of the Board
17. The Board found the 1st Applicant incredible and did not accept her account. The Board found her evidence regarding her relationship with Solorio and the problems she allegedly experienced from him to be vague, conflicting and confusing. That raised serious concerns about the credibility of most aspects of the nature of her relationship with him, including the violence she claimed to have been subjected to by him. The 1st Applicant’s delay in seeking protection in Hong Kong also raised doubts about the veracity of her claims.
18. She gave different accounts as to when she moved in with Solorio and when she had her first child. She said she gave birth to her first child either in 2002, 2003 or 2004. That could not tie in with the various events and assaults she alleged. She was not able to recall the years in which she suffered attacks by Solorio. The Board held that if she had genuinely suffered the injuries (including a fractured arm), it was “utterly implausible” that she would not be able to provide consistent evidence as to when that occurred. Her evidence that she had no contact with Solorio since her last return to the Philippines in July 2015 is inconsistent with her evidence before the Board that Solorio kept sending her threatening messages on Facebook and to her telephone. The Board found she has embellished this aspect of her evidence to bolster her claims. The Board was not satisfied that the 1st Applicant experienced the problems she claimed she had from Solorio.
19. The Board did not accept in particular that Solorio had threatened and pushed the 1st Applicant in July 2015 causing her to fall and bleed. The Board found it implausible that after having separated for somewhere between eight and five years, having no contact with the 1st Applicant for a period of three years and being in a relationship with another woman, Solorio would have reacted angrily, threatened and pushed her upon learning she was carrying someone else’s baby. For the same reason, the Board did not accept Solorio continued to have any interest in the 1st Applicant.
20. Having rejected her evidence, the Board found the Applicants had failed to show there was a real risk that they would face any of the proscribed forms of harm from Solorio should they return to the Philippines. According, the Board found that the Applicants had failed to prove the factual basis in support of their claim for non-refoulement protection and dismissed their appeal.
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[5] .
Grounds for judicial review
22. The Applicants did not advance any grounds for judicial review in the Form 86. In the 1st Applicant’s supporting affidavit, she only reiterated that her life is still in danger in the Philippines. The Applicants had been invited by the Court via its letter dated 18 February 2021 to advise the Court of their first language, telephone contact number and to file submissions. They responded and confirmed they had no submissions to make.
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. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to the Philippines. In effect, they are seeking to challenge the Board’s finding of fact that they 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.
Conclusion
24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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. The Board found the 1st Applicant (on whose evidence the 2nd Applicant’s claim depends) incredible on the crucial issues of their risk of harm upon their return to the Philippines and rejected her evidence. Basically, the Applicants failed to discharge their burden of proving their fears and risks. It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s application is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Hence, leave to apply for judicial review is refused.
Dated the 5th day of September 2022.
( Allen LEE )
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 :
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);
Sent to the ApplicantRomulo Jenifer De Guzman Rana Gabrielle Jass
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 5/9/2022Torture Claims Appeal Board /Non-Refoulement Claims Petition Office Director of Immigration 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 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] [2018] HKCA 524 at para 14(1)