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HCAL 1930/2019
[2024] HKCFI 2735
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1930 of 2019
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BETWEEN
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Reyes Milagros Lagua |
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:
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 9 July 2019 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 3 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 February 2018 (the “Notice”).
2. The Applicant had requested an oral hearing of her leave application. A notice of hearing was sent to her by post to her address as discovered from the Immigration Department in July 2024. That address was different from the one she gave in her Form 86 five years ago. The notice was not returned through the post. However, she did not appear at the hearing. Previously, a letter inviting submission had been sent to her by post at the same address. It was not returned through the post and she did not respond. She never informed the court of any change of address. There is nothing to suggest that she had not received the letter or had moved. The Court was satisfied that the notice of hearing had been effectively served on the Applicant. 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 that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is a Philippine national. She last entered Hong Kong on 30 July 2012 to work as a foreign domestic helper. She overstayed in Hong Kong from 17 December 2013 after her employment was prematurely terminated. She surrendered to the Immigration Department on 18 December 2013 and made a non-refoulement claim by way of written representation dated 17 February 2016.
4. 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 claim was rejected by the Director’s decision in the Notice. Her appeal against the Director’s decision was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
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 (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the Applicant claims that, if returned to the Philippines, she would be harmed or killed by her ex-husband and his girlfriend’s brother.
6. The Applicant is now aged 51. She had received ten years of formal education and about ten years’ experience working as an inventory clerk, waitress and domestic helper in Singapore and Hong Kong. She has five children with her ex-husband and one with her ex-boyfriend. All her six children are living in the Philippines. She is now in a cohabitation relationship with a Hong Kong permanent resident (“J”). They have three children who are all living in Hong Kong.
7. Two years after their marriage in 1993, the Applicant’s then husband (ie the ex-husband) started physically abusing her. The domestic violence escalated since her ex-husband started taking drugs in 2001. Because of her fear of her ex-husband, she did not report the abuse to the police or seek medical treatment.
8. In the same year, she moved to her mother’s place. On several occasions, her ex-husband went to her mother’s place to ask her to return to his home. As she refused, he stayed in her mother’s place with her in 2003. After she left the Philippines to work as a domestic helper in Singapore in September 2003, her ex-husband moved out. The Applicant did not maintain contact with him. While in Singapore, she developed a relationship with another person and gave birth to a child in August 2009. Then, she came to work in Hong Kong in 2010.
9. In 2012, the Applicant returned to the Philippines on holiday to visit and stay with her mother. She learned that her ex-husband had a girlfriend. On the evening of 25 July 2012, as she was on her way home, she heard a gunshot from behind her. She turned around and saw her ex-husband and three others threw a man out from a jeep and then one of them shot the man dead (the “murder incident”). The man who held the gun saw the Applicant and attempted to approach her, but her ex-husband restrained him. The Applicant was terrified and immediately ran home. One to two hours later, her ex-husband and the man who held the gun came. They threatened to kill the Applicant, her mother and her children if she reported the murder incident to the police. They left after she promised not to. The Applicant later learned that the man who held the gun was the brother of her ex-husband’s girlfriend and that he and her ex-husband belonged to the New People’s Army (“NPA”).
10. The Applicant returned to Hong Kong on 30 July 2012. While in Hong Kong, she developed a relationship with a Hong Kong resident and have three children. She had not received any news about or contact with her ex-husband or his girlfriend’s brother. However, she is afraid that if she returned to the Philippines they would harm or even kill her because she witnessed the murder. She does not believe the Philippine authorities and police would help her, as they are corrupt. She does not believe internal relocation would be viable because her ex-husband and his girlfriend’s brother could locate her throughout the Philippines through their powerful network.
The finding of the Board
11. The Applicant testified before the Board. The Board considered the number and nature of inconsistencies and contradictions in her evidence were sufficiently serious as to undermine the reliability of her evidence. In her NCF, she said she only knew her ex-husband as one of the four men involved in the murder incident and she referred to her husband’s girlfriend’s brother as “the man who had a gun”. But she told the Board that by then she had already met the girlfriend’s brother personally, though she did not know any details about him. When confronted with the inconsistency, the Applicant said she only mentioned in the NCF that she had met the girlfriend’s brother after the murder incident. That explanation contradicted her evidence in the NCF.
12. More importantly, in her NCF, record of screening interview and her written representation, she said she was afraid of her ex-husband and his girlfriend’s brother. But at the hearing, she confirmed that the domestic violence was irrelevant to her claim. She said that despite the violence, she was not afraid of her ex-husband at all, but was only afraid of his girlfriend’s brother. As the evidence showed that her ex-husband had power to restrain his girlfriend’s brother such that nothing happened to her on the night of the murder incident, the Board doubted whether she genuinely maintained the fears she claimed to have.
13. The Board was unable to accept that her ex-husband or his girlfriend’s brother or anyone connected to NPA pose any threat to the Applicant as she had never seen them after the murder incident and had no direct contact with NPA. It was unable to accept that the Applicant was personally targeted by her ex-husband or his girlfriend’s brother on behalf of NPA.
14. The Board noted that the Applicant never suffered any physical and/or mental ill-treatment at all and/or of the requisite severity as a result of the murder incident.
15. On the basis of authoritative and credible country of origin information (“COI”), the Board accepted that while there may be doubts about the conduct and effectiveness of the Philippine police, there are objective indications that there was a functioning judicial system in the Philippines and the government has taken practical steps to maintain public order, improve police effectiveness and monitor police conduct. It was satisfied that adequate state protection was available and there was no evidence to suggest that the state of the Philippines was unwilling to help the Applicant for a reason related to the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention”), ie on account of race, religion, nationality, membership or a particular social group or political opinion (the “Convention reasons”). The Board also found that as an able-bodied person, the Applicant could safely relocate to Manila or Quezon City to avoid the perceived risks from her ex-husband and her girlfriend’s brother, which were localised within Valenzuela City.
16. Applying the law applicable to non-refoulement protection to these facts, the Board found the Applicant had failed to establish the factual basis to support her claim to protection under any of the four applicable grounds under the USM.
17. For Persecution Risk ground, the Applicant was never targeted before for a Convention reason in the past. Her case was that she was targeted because she witnessed a murder by her ex-husband’s girlfriend’s brother and not because of any Convention reason.
18. For BOR 2 Risk ground, the Board found there was no evidence to show that the Applicant committed any criminal offence at all, let alone one for which she would face capital punishment.
19. For BOR 3 Risk ground, the Board doubted whether the Applicant maintained the fears she claimed to have. It therefore found there were no substantial grounds for believing that, if returned to the Philippines, she would face a “genuine risk” of being subjected to ill-treatment of a minimum level of severity.
20. For Torture Risk ground, it was not the Applicant’s case that there was a consistent pattern of gross, flagrant or mass violations of human rights in the Philippines. The Board found that her ex-husband and his girlfriend’s brother whom the Applicant claimed would inflict torture on her were non-state actors and the issue state acquiescence did not arise in the circumstances of this case. Hence, the Board found the feared risk of harm did not qualify as “torture” within the meaning of section 37U(1) of the Immigration Ordinance.
21. For all these reasons, the Board dismissed her appeal and affirmed the decision in the Director’s Notice.
Legal principles applicable to judicial review
22. 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
23. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affidavit, she stated that she did not agree with the Board’s Decision because of her children’s problems and their rights.
24. Insofar as her disagreement with the Board’s Decision is concerned, she is in effect 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 the Philippines. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review.
25. Insofar as her reliance on her children’s problems and their rights are concerned, this basis of claim had never been raised before the Director or the Board. It is not open to her to seek to review the Decision on this ground as the Board had made no decision in relation to her children’s problems and their rights.
26. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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. 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 accepted almost the entirety of the Applicant’s evidence, except that she was genuinely in fear of harm from her ex-husband and his girlfriend’s brother. On the basis of the COI, it found adequate state protection was available and there was no reason for the Applicant not to seek assistance from the police. It was primarily on the basis of these findings that the Board found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. These are finding of facts and of law. Insofar as it is a finding of fact, it is exclusively within the realm 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. Insofar as it is finding of the law, it is absolutely correct. 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 his burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
27. For the above reasons, this leave application is refused.
Dated the 10th day of October 2024
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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 10/10/2024
Reyes Milagros Lagua
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 10/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10424/18/2/308/F586
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3583/17 (Formerly RBCZ 10877/16)
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 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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