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HCAL 389/2019
[2024] HKCFI 1121
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 389 of 2019
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BETWEEN
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Morareng Dinah Ananga alias |
Applicant |
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Guinanoy Dinah Morareng |
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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 12 February 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 25 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 April 2018 (the “Notice”).
2. The Applicant is a Philippine national. She had previously entered Hong Kong on 22 October 2009 as a visitor. After she was arrested for overstaying, she lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On 14 February 2012, she withdrew her claim but requested to re-open it on 29 February 2012. On 21 September 2012, she again withdrew her claim and was voluntarily repatriated to the Philippines on 4 October 2012.
3. The Applicant last entered Hong Kong on 20 August 2016 as a visitor and was permitted to remain until 17 September 2016. She overstayed and was arrested on 30 December 2016. On 4 March 2017, 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’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. 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 claims that she would be harmed by the people who murdered his father upon her return to the Philippines because she had witnessed the incident and made a police report.
5. The Applicant, now aged 46, was born in Sadanga Mountain Province, Philippines. She received twelve years of education. She had 12 years of education, including a computer secretarial qualification. She is widowed and has a son who is living in Manila. Her village was located in a mountainous area where members of the New People’s Army (“NPA”) often hid. There were fights between the Philippine army and the NPA from time to time between 1990 and 2014. NPA members sometimes asked the villagers for food. On one occasion, two men asked the Applicant for food and when she refused, they threatened to kill her. The Applicant claimed that her father was against the NPA.
6. One night in 2014, as she and her father were on their way home after irrigating their farmland, her father was shot by three unknown men. Her father died on the spot, while the Applicant ran away. She hid behind some tall grass until the next day. Then, an elderly woman passed by and discovered her father’s body. She asked the villagers to carry her father’s body back to the Applicant’s home. Those people made a police report. The Applicant’s brother advised the Applicant not to follow up with the police for fear of retaliation.
7. After her father’s burial, the Applicant went to live with her friend in Laguna. Three days later, she learnt from her neighbours through her friends that her house was burnt down. She suspected it was burnt by members of the NPA. In September 2016, she fled to Hong Kong to avoid the NPA.
The finding of the Board
8. The Applicant testified before the Board. The Board found numerous inconsistencies between her evidence in the NCF, the written representation and her testimony. It found her incredible and rejected her evidence in its entirety. Hereunder are some of the more blatant difficulties in her evidence.
9. First, the Applicant was evasive about her previous stays in Hong Kong, Macau and China between October 2009 and October 2012 and the torture claim she lodged in Hong Kong during that period.
10. Second, in her written representation dated 10 February 2017, she said that her father was shot due to a tribal war and made no mention of the NPA. But, she confirmed to the Board that apart from her fear of harm from the NPA, she had no other reasons not wishing to return to the Philippines. She even told the Board that she knew her father’s killers were members of the NPA.
11. Third, her evidence in the NCF that her family house was burnt down by the NPA is inconsistent with her testimony that her mother was living in the house at the time of the hearing before the Board. She then changed her evidence and said that her mother moved to live with her maternal aunt after the house was burnt. Her evidence about the incident is on the whole confusing and inconsistent.
12. Fourth, in her written representation dated 4 March 2017 she claimed that she had been kidnapped by three people who were going to rape and kill her. But she told the Board that she never faced personal problems or harm from the NPA.
13. Fifth, in the NCF she said that the old woman discovered her father’s body and asked the villagers to take it back to the Applicant’s home. This account is markedly different from her testimony before the Board that the old woman brought her to see her father’s body and then they shouted for help.
14. Sixth, she said in the NCF that she made a police report and hence the NPA targeted her. But she told the Board that she had never gone to the police station and had not talked to the police when they came to her village to investigate.
15. Having rejected the Applicant’s evidence in its entirety, the Applicant had failed to prove she would be subject to any of the proscribed risks of harm upon her return to the Philippines. In fact, on her own evidence, she lived in the Philippines with her friends without being harmed in the intervening period of over one and a half years from December 2014 until August 2016 when she left for Hong Kong. There is nothing to suggest that the NPA or other people have been looking for her to harm her. Even on the assumption that her evidence is accepted, the Board found there is no real risk of the Applicant being caught up in any tribal war; or will face a real risk of harm from the NPA now or in the reasonably foreseeable future. The feared harm arising from the tribal war or the NPA, even if it were real, will not be 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 such it will not fall within the definition of ‘torture’ under section 37U of the Immigration Ordinance as to entitle the Applicant to protection under the Torture Risk ground.
16. According to authoritative and credible country of origin information (“COI”), the NPA was classified as a terrorist organisation in 2017 and the Philippines authorities are taking active steps to eliminate it. There were only about 3,700 NPA members left in the Philippines. The Board also found adequate state protection will be available to the Applicant upon her return. In addition, having regard to her background, education, skills and experiences, the Board considered internal relocation to Manila, Laguna, Cebu or one of the other urban areas in the Philippines or an area without NPA presence would be viable options to avoid the risk of harm.
17. It is also not the Applicant’s case that a death sentence has been passed on her by the Philippines government or that the situation in the Philippines is such that there is a risk that she will be arbitrarily deprived of her life if returned to the Philippines and the government will not be able protect her against such risk. Hence, she is not entitled to protection under the Persecution Risk ground, BOR 2 and BOR 3 Risk grounds.
18. For all these reasons, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision in the Notice.
Legal principles applicable to judicial review
19. 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
20. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, the only complaint she raised was that she was not satisfied with the decision of the Board. She had been invited by the Court via its letter dated 22 December 2021 to advise the Court of her first language and to file submissions. She responded but did not file any submissions. The essence of her 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.
21. After the legal principles in the preceding section was explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness and irrationality. She understood she could not challenge the Board’s finding of fact except on these three basis. She only wished the Court to review the Decisions by reconsidering her claim. 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.
Discussion
22. 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.
23. The Board found the Applicant’s evidence incredible and rejected the entirety of her case. She had therefore failed to establish the factual basis to support her claim for protection, ie that she will be at risk of harm from the tribal war or the NPA if returned to the Philippines. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. The Board did not dismiss her appeal simply on that basis. It went further and found even on the basis of her evidence, the Applicant had failed to prove as a matter of law her entitlement to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of law. Insofar as they are finding of fact, they 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. Insofar as they are finding of the law, they are absolutely correct. 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. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
24. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 22nd day of April 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 his 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 22/4/2024
Morareng Dinah Ananga alias Guinanoy Dinah Morareng
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 22/4/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11563/18/5/148/F725
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1364/18 (Formerly RBCZ 10569/17)
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] [2018] HKCA 524 at [14(1)]
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