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HCAL 2373/2023
[2024] HKCFI 1433
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2373 of 2023
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BETWEEN
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Palabrica Lanne Boncales |
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:
1. Extension of time to apply for leave for Judicial Review be refused; and
2. 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 28 December 2023 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 29 August 2023 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 January 2023 (the “Notice”).
2. The Applicant 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 her leave application may be justly determined on paper without an oral hearing.
3. The leave application was filed just under four months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made just under one month out of time. Extension of time to file the leave application is required.
4. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.
5. The Applicant did not give any explanation for the delay. As the delay is not very substantial. Instead of incurring time to explore the reasons for the delay with the Applicant by way of an oral hearing or correspondence, the Court considered it more expedient to proceed straight to assess merits of the leave application, which is usually the crucial and determining factor in an application for extension of time to apply.
6. The Applicant is a Philippine national. She last entered Hong Kong on 20 February 2019 to work as a foreign domestic helper. Her employment was prematurely terminated and she overstayed in Hong Kong since 3 November 2021. On 19 October 2022, she raised a non-refoulement claim. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. 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
7. 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 upon her return to the Philippines, she would be harmed by her partner for having a boyfriend in Hong Kong and by a moneylender for failing to repay her outstanding loans.
8. The Applicant, now aged 32, was born in the Philippines. She received ten years of formal education and has worked for six and half years as a sales clerk and foreign domestic helper.
9. She cohabited with her partner since 2008 and gave birth to a girl in 2009 and a boy in 2011. She started working in Hong Kong as a foreign domestic helper on 20 February 2019. On her partner’s suggestion, she agreed to borrow a loan from the moneylender to support their family. She engaged her partner’s help in arranging the loans. She borrowed two loans of 20,000 pesos each at a monthly interest rate of 10% in April 2021 and August 2021. She ceased repaying the loans since September 2021 when she became unemployed.
10. Her relationship with her partner also turned sour in August 2021. She discovered her partner had a girlfriend in the Philippines and she started seeing a boyfriend in Hong Kong. Her partner sent her two messages through Facebook in early November 2022 threatening to kill her if she returned to the Philippines. He also told her that the moneylender was looking for her because she had blocked the moneylender’s telephone.
11. The Applicant maintained sporadic contact with her partner about twice a month over the telephone and Facebook. Her partner showed signs of alcohol abuse and continued his threats to kill her upon her return.
12. She does not believe the Philippine police would help her because her problems were just domestic and monetary disputes. She does not believe internal relocation would be viable because she does not know anybody outside her home town.
The finding of the Board
13. The Board found the Applicant’s evidence to be generally credible, though it found that she exaggerated the degree of risk she faced, especially when tested against authoritative and credible country of origin information (“COI”). It accepted she had an unhappy relationship with her partner and had outstanding loans in the Philippines.
14. The Board accepted that her partner abused alcohol and had hit her from time to time and that she sometimes hit back in self-defence. However, it found the Applicant never suffered any serious or life-threatening harm from her partner and her injuries did not even required medical treatment. Although the absence of past harm did not necessarily mean an absence of a real risk of future harm, it considered that in the Applicant’s case she would not face any real risk of harm from her partner upon her return to the Philippines. It found on the totality of the evidence that the Applicant’s partner had no real intention to harm her.
15. The Board accepted that the Applicant had raised a loan from the moneylender to cover living and education expenses for her children, she was unable to repay, the moneylender had made some calls threatening to send someone to look for her and to apply witchcraft on her and she blocked the moneylender’s calls. But the Board found there was no credible evidence that the moneylender had a history of harming her debtors or that the Applicant had demonstrated that the moneylender held a real intention to harm her.
16. The Board also found there was nothing to support the Applicant’s concern that the police would not get involved in money or domestic matter. On the contrary, it found on the basis of the COI, that adequate police protection would be available if she had sought protection. It dismissed her evidence that the moneylender could locate her throughout the Philippines as exaggeration. It found she could relocate to other cities, including Cebu City or Davao City if she continue to entertain any subjective fear of harm.
17. In conclusion, the Board found there are no substantial grounds for believing that the Applicant would face any real risk of proscribed harm, whether from her former partner or the moneylender, if returned to the Philippines. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
18. 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[6].
Grounds for judicial review
19. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she reiterated that she will be killed by her husband (which the Court understands her to mean ‘her partner’) if returned to the Philippines. She made no mention about the moneylender. She had been invited by the Court via its letter dated 24 January 2024 to inform the Court of various matters and to file submissions. She did not respond.
20. The essence of the Applicant’s 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. 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.
Discussion
21. 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.
22. The Board accepted the core, though not the entirety, of the Applicant’s account of the events she relied on as the factual basis of her claim for protection. It accepted she was genuinely in fear of harm as a result of the threats. The Applicant could not have any complaint about the Board’s finding of these facts. It rejected her evidence that the police will not protect her from her feared harm because it arose from her personal domestic dispute with her partner or financial dispute with the moneylender as exaggerations. It found on the basis of the COI that adequate state protection is available and will be available on her return to the Philippines if she seeks assistance. It also found internal relocation a feasible option to avoid the risk of harm, if the risk turns out to be real. These are also the Board’s finding of facts which the Court will not interfere. On the basis of these primary facts, the Board made further finding of secondary facts, including that the Applicant’s partner and the moneylender had no real intention to harm her or execute their threats. There was, therefore, no objective basis for her fear and her feared risk of harm was not real. These are secondary finding of facts which are also exclusively within the province of the Board, which the Court on a judicial review will not interfere. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as any of these findings are finding of law, the Court could not detect any error of law. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere. The Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, leave to file the Notice of application for leave to apply for judicial review out of time and the Applicant’s leave application are refused.
Dated 24th day of May 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 24/5/2024
Palabrica Lanne Boncales
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 24/5/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21449
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1184/22 (Formerly RBCZ 5001065/22)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] 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
[3] 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”)
[4] 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
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6]. [2018] HKCA 524 at [14(1)]
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