ASUNCION JACKIELYN SICAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2460/2019

[2025] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2460 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 oral submissions by the Applicant in open court;

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 26 August 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 1 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 June 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is a Filipino national. She last entered Hong Kong on 12 April 2016 as a visitor. She overstayed since 27 April 2016. She was arrested by the police on 10 June 2016, and was referred to the Immigration Department on 12 June 2016. On 27 June 2016, she made a non-refoulement claim. 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 application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  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 will be harmed or killed by her boyfriend (the “boyfriend”) for refusing to let him have custody of their daughter and by a moneylender (the “moneylender”) for being unable to repay her loan.  

4.  The Applicant, now aged 40, was born in Isabela, the Philippines. She is single. She had a child from each of her two previous relationships. Her two children, widowed mother and two siblings are living in the Philippines. She had received twelve years of formal education and had six years’ experience working as a salesperson in the Philippines, massage therapist in Saudi Arabia, and domestic helper in Hong Kong.

5.  She claimed that she started a relationship with her boyfriend in 2009, when they were working in Saudi Arabia. One year after their cohabitation, her boyfriend subjected her to domestic violence. He slapped and punched her. After giving birth to their daughter in Saudi Arabia, she went back to the Philippines with her daughter to avoid her boyfriend. She lived with her parents in Gumbauan. In 2011 or 2012, her boyfriend went to her parents’ home to try to take away her daughter. In the heat of the moment, he punched her face and stomach, and attempted to stab her with a knife. She struggled and suffered a slash on her right arm but managed to escape with her daughter. She self-treated the injuries.

6.  After the incident, she went to stay with her brother in Manila. In December 2012, her boyfriend located her. He tried to take her daughter away from her. He punched, slapped and kicked her. Subsequently, her brother returned home and stopped her boyfriend by force. Before leaving, her boyfriend warned her that he would follow her wherever she went. Again, she self-treated the injuries.

7.  She then worked as a domestic helper in Hong Kong from September 2013 to September 2015. In December 2015, she returned to Gumbauan. There was an occasion where her boyfriend went to her home drunk. He told her that he knew she had a boyfriend in Hong Kong. He became angry and started punching, kicking and slapping her. He also tried to strangle her. Her mother begged him to let go and threatened to call the police. Then he left. The Applicant self-treated the injuries at home. For her own safety, she moved to stay with her brother in Manila for a month, and then came to Hong Kong in February 2016. She never reported the incidents to the police.

8.  A few months before coming to Hong Kong, she borrowed 300,000 to 400,000 Philippine Peso (“PHP”) at a monthly interest rate of 15% from the moneylender in Manila. After her employment was terminated in September 2015, she was unable to repay the loan. She had repaid about 100,000 PHP in total since 2013. In 2016, the moneylender started sending messages to her to demand repayments. His associates went to her mother’s home once in 2016 and once in 2017 to threaten to take away all of her properties if the loan was not settled. However, they did not hurt her mother or other family members during their visits.

9.  While in Hong Kong, she learnt from her mother that her boyfriend wanted to take her daughter away and that the moneylender was still searching for her.

10.  The Applicant claims that state protection is not available and she does not trust the police or the authorities in the Philippines. She does not believe internal relocation viable, as she does not have the financial resources to relocate and her boyfriend could locate her throughout the country.

The finding of the Board

11.  The Applicant testified before the Board. The Board found her evidence relating to the centerpiece of her case inconsistent, vague and lacking in credibility.

12.  She told the Board for the first time that apart from fisting and kicking her, her boyfriend also strangled her in around December 2012 in Manila, and uttered death threats to her through her Facebook as well as upon her return to the Philippines in September 2015. At first, she explained that she did not tell everything that took place in her NCF. Later, she changed her evidence and said that she had mixed up the issues.

13.  Previously, she said that her boyfriend stopped strangling her after her mother threatened to call the police. The Board though if her boyfriend was still influential or protected by the senator, he would not have been scared away by her mother’s threat to call the police.

14.  Previously, she said she self-treated her injuries at home. At the hearing, she explained that she did not seek medical treatment because she was scared that her boyfriend could find out her whereabouts from the central data system. The Board found her explanation and claimed fear illogical because her boyfriend had already located her and hurt her.

15.  In her NCF, she said she had borrowed 300,000 to 400,000 PHP at a monthly interest rate of 15% from the moneylender, and that she had repaid 100,000 PHP. However, at the screening interview, she said it was her brother who borrowed the money from the moneylender and she did not know the exact amount borrowed but the moneylender demanded 400,000 PHP. She told the Board that she could not provide much details of the loan.

16.  When asked to account for the inconsistencies in her evidence, she explained that she had stomach ache right before her screening interview but was told to proceed with the interview. The Board did not accept that as a satisfactory explanation, as she had confirmed in the record of interview that she was fit and well. Besides, if she was feeling unwell, she could have reserved her right to make the record straight later, either by herself or through her lawyer, as what she did in her NCF. The Board rejected her evidence about the loan.

17.  In view of these concerns, the Board found she was embellishing her account of the events and rejected her evidence. It did not accept she had been subjected to any harassment by her boyfriend or the moneylender or that there is a foreseeable, real and personal risk that she will be subjected to harm from anyone upon her return to the Philippines. In the alternative, if she had been subjected to torture, the Board found the ill-treatment was not inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as to constitute ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance. Hence, it rejected her claim under the Torture Risk ground.

18.  For the same reason, the Board did not accept she had been subjected to cruel, inhuman, degrading treatment or punishment (“CIDTP”). Hence, it rejected her claim under BOR 2 and BOR 3 Risk grounds.

19.  On the above finding, the Board found there was no evidence to suggest that she would face any risk of persecution and if such risk existed, it did not arise out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Hence, it rejected her claim under the Persecution Risk ground.

Legal principles applicable to judicial review

20.  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

21.  At the hearing, after the above legal principles have been explained to the Applicant, she complained that the Board erred in law in not taking into account her risk of being killed by her boyfriend as evidence by the injuries suffered by her in the 2015 assault. She also complained that the Decision was unfair because the Board did not take into account that her boyfriend is “a big person” and could find her anywhere in the Philippines. She had no complaint about irrationality in the Decision. In addition, in her Form 86, she advanced the following seven grounds:

(1)  the Board’s Decision and the Director’s decision in the Notice are wrong, unreasonable and unfair;

(2)  the Director erred in failing to give weight to the presence of state acquiescence and that she was tortured by the state law enforcement agencies as well as those high up in the political circle;

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information (“COI”) and failed to take her personal circumstances into account;

(4)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board acted improperly and unfairly when assessing her explanations and asking questions that she was not in a position to respond; and

(7)  the Board should have allowed her appeal instead of dismissing it.

22.  Some of these grounds are directed at the Director, some at the Board and some at both the Board and the Director. The Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, see Re Moshsin Ali[6]. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board.

23.  The complaints raised by the Applicant in response to the Court’s explanation in the preceding section overlapped with the grounds raised in her Form 86 and will be considered along with these grounds.

Ground (1) – the Decision is wrong

24.  The Applicant submits under this ground that the Philippines is such a small country that she cannot hide from her boyfriend. The underlying premise of this argument is that the Board had made a finding that the Applicant could avoid the risk of harm from her boyfriend or the moneylender by internal relocation. However, there is no such finding by the Board. The basis of the Board’s Decision is that the Applicant had failed to prove any harassment by her boyfriend or the moneylender. Simply put, the Board found the Applicant had suffered no harm, there was threat or risk of harm, and there was no need for her to run away. The Applicant is barking at the wrong tree.

Ground (2) – failure to take into account state acquiescence

25.  The Applicant submits that her boyfriend is a hired killer of a senator and in that position, his harassment on her amounted to state acquiescence. Putting aside the Board’s finding that the Applicant had failed to prove harassment, even if the senator was the person delivering the threat, that alone without more is not sufficient to prove state acquiescence, not to mention that the threat was uttered by an employee of the senator, who is neither a public official nor other person acting in an official capacity.

Ground (3) – wrong reliance on the COI

26.  The Applicant complains that the Board acted unfairly by placing too much reliance on COI and failed to take into account that the politics in the Philippines is dirty. She has not identified COI complained of which led to the Board’s Decision. The Board had referred to COI about the Philippine police, corruption, the judicial system, domestic violence, women and child protection, assistance from the Barangay and freedom of movement within the Philippines. These are just general country information, probably mentioned by the Board to put itself in the position of a local person for the purpose of better understanding the Applicant’s situation. The information has no bearing on the Board’s Decision as it found the Applicant had failed to prove any harassment. This ground is just a bare assertion without particulars and without proof. Besides, the Applicant has also not identified any nexus between political dirtiness in the Philippines and a hired killer of a senator in causing her harm.

Ground (4) – failure to take relevant matters into account

27.  The Applicant complains that the Board erred in failing to take into account that her boyfriend is “a big person”, being a hired killer of a senator, has hurt her in the 2015 assault, that she knew “things” about him which made it necessary for him to kill her and that he can locate her anywhere in the Philippines. The Board noted her allegation that her boyfriend was a police officer hired by the senator and having murdered someone he was arranged to go to Saudi Arabia on a forged passport. Presumably, those were the “things” she knew about her boyfriend which made it necessary for him to kill her and that was also why she called her boyfriend “a big person”. The Board was aware of the alleged 2015 assault, but rejected it as not having been proved. In the alternative, it found the ill-treatment did not attain the level of severity required to prove CIDTP. All these are finding of fact which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the Decision. There is no evidence of such vitiating elements.

Ground (5) – breach of the high standard of fairness

28.  The Applicant relies on the 2015 assault as evidence of the Board’s breach of the high standard of fairness. During that assault, the boyfriend allegedly attempted to strangle her but let go when the Applicant’s mother threatened to call the police. The Board apparently did not give weight to the alleged assault because it found there was no such assault. This is a finding of fact which the Applicant may not challenge.

Ground (6) – assessing her evidence unfairly and asking unfair questions

29.  The Applicant’s complaint is that the Board acted improperly and unfairly when assessing her explanations and asking questions that she was not in a position to respond. She was unable to identify the improper and unfair questions asked by the Board and the unfair finding reached by the Board as a result. She admitted she had no such evidence. She reiterated that her boyfriend can find her and had hurt her already. Her allegations could not assist the Court to understand her complaint. Besides, they could not support her complaint.

Ground (7) - the Board should have allowed her appeal instead of dismissing it

30.  This is a direct challenge of the Board’s finding of fact which is impermissible.

Overall scrutiny

31.  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 properly, tested it against common sense and inherent probability. It accepted part of the Applicant’s evidence, but found her incredible as regards the core issues of her claim. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to prove she had been ill-treated by her boyfriend and/or the moneylender. Then, applying the law to the above finding and some other finding of fact, it found she had failed establish 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 on 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 his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

32.  For the above reasons, the leave application 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