REPONOYA ARLYN ESPINOSA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2802/2018

[2021] HKCFI 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2802 of 2018

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 Applicant in open court;

1.  Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 16 August 2017.  According to the Court’s inquiry, the Board only made one decision relating to the Applicant dated 26 October 2018 (the “Decision”) which affirmed the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 August 2017 (the “Notice”). Hence, for the benefit of the Applicant, the Court granted leave to amend her application by substituting the date of the decision sought to be reviewed by “26 October 2018”.  

2.  The Applicant is a Philippine national.  She entered Hong Kong in June 2009 to take up employment as a foreign domestic helper.  She became an over-stayer since 13 May 2015.  She surrendered to the Immigration Department.  On 29 July 2016, she applied for non-refoulement protection claiming that she will be harmed or killed by her husband if she is returned to the Philippines.

3.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Notice of the Director dated 16 August 2017, the Director rejected her claims.  On 30 August 2017, she lodged an appeal to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board on 26 October 2018.  On 7 December 2018, she applied for leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service. 

5.  The Applicant married her husband in July 2003 and gave birth to two children.  Her husband was a bus conductor and belonged to a political party, the name of which she could not recall.  He had many relatives and friends who worked in the police department. She later found out that her husband was a member of a local gangster group and always consumed alcohol and marijuana. 

6.  In 2005, her husband punched her in the face once.  In December 2006, she moved out of her home and stayed in her parents’ home for 8 months.  Her husband paid regular visits to her parents’ home to look for her.  He threatened her to return home by issuing death threats.  She reported the threats to the police, but the police took no action.

7.  In August 2007, the Applicant moved to her friend’s place in New Corella with her two children.  She was located by her husband 15 months later.  Her husband and his gang uttered death threats at her.  On one occasion, she was pushed against the wall but was rescued by her neighbours.  She did not seek police for help.

8.  In June 2009, the Applicant took her children to her grandmother’s place in Tagum City for care while she went to Hong Kong to work as a foreign domestic helper.

9.  The Applicant returned to the Philippines on leave in about September December 2010 and July 2014.  She discovered that her husband had located her.  But she managed to avoid him.

10.  The Applicant took her children to Lower Mangalcal where her friend was residing.  One day, around August 2014, she was hit by car driven by her husband and his gang.  They came out of the car and assaulted her.  They fled when some passers-by came to her rescue.  While leaving, her husband threatened her with death.

11.  Then the Applicant returned to work in Hong Kong.  She found out her husband had taken away her children from her grandmother’s home, presumably as leverage for her return to the Philippines.

12.  In March 2015, her employment contract was prematurely terminated.  She became an over-stayer. She did not maintain contact with her family but learned that her husband had joined a political party and threatened to kill her should she return to the Philippines.

The finding of the Board

13.  The Board’s findings of material facts are set out in paragraphs 63 to 81 of the Decision.  It identified some major discrepancies between the Applicant’s evidence given at the oral hearing before the Board and that in her non-refoulement claim form (“NCF”).  Notably, she gave a detailed description in her NCF about the car incident and assault in Lower Mangalcal in 2014.  That incident is the centrepiece of her case of fear and risk.  But in her evidence before the Board, she said that her husband had not located her at all and she stayed a few days in Lower Mangalcal before going to Manila to wait for her journey back to Hong Kong.  She said nothing untoward occurred during her home visit in 2014 as if the car incident never occurred.

14.  The Applicant’s evidence about her visit to her grandmother’s place in July 2014 is also problematic.  That was a month before the car incident.  In her NCF, she said that her husband located her there and yelled at her.  Then she took her children to Lower Mangalcal.  At the oral hearing before the Board, she said she just visited her grandmother and did not stay there; that her husband had not located her there and that her husband had taken away her children in 2011.

15.  The Board identified other discrepancies and did not find the Applicant credible.  The Board accepted the husband had inflicted domestic violence on the Applicant between 2005 and 2008, had uttered verbal threats, but her last encounter with her husband was in 2008.  The Board found there was no evidence that the Applicant had suffered physical or mental suffering of the requisite severity or that the husband’s conduct evinced an intention to escalate or materialize his threat by killing her.  The Board did not accept the husband had located the Applicant in July 2014 in her grandmother’s home and assaulted her; or had knocked her down in the car incident and assaulted her in August 2014.

16.  The Board considered the Country of Origin Information (“COI”).  It was satisfied that state protection is available to the Applicant and that it was the Applicant who chose not to follow up on the matters with the police. 

17.  The Board also made other material findings which are detrimental to the Applicant’s case.  The above findings are sufficient to show that the centrepiece of the Applicant’s case could not stand.

18.  In summary, the Board held that the Applicant had failed to discharge the burden of proving she had genuine fear or risk for her life and safety to qualify her for protection under any of the four applicable grounds under the USM. 

Grounds for judicial review

19.  The Applicant has not advanced any specific ground in support of her application for leave to apply for judicial review. Despite repeated prompting, all that she could say was she did not like the Decision and her life is still in danger if she is returned to the Philippines.  She confirmed that she had a fair hearing before the Board and was free to address the Board and make submissions.  In essence, she is seeking to challenge the finding of facts of the Board under the guise of judicial review.

20.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness, unreasonableness or irrationality: see Nupur Mst v Director of Immigration[5].  Having rigorous 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; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success. 

Conclusion

21.  For the above reasons, the Court granted leave to amend the Applicant’s application by substituting the date of the decision sought to be reviewed by “26 October 2018” and refused her application for leave to apply for judicial review.

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

[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)