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HCAL 2634/2019
[2025] HKCFI 2093
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2634 of 2019
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BETWEEN
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Deuna Leila De Leon |
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. Leave to amend the Form 86 be granted; 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 on10 September 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 30 April 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 May 2018 (the “Notice”), refusing her application for non-refoulement protection.
2. The Applicant had requested an oral hearing and an oral hearing on 12 March 2025 was scheduled for her. Notice of the hearing was sent to her by post to her address as provided by her on 3 March 2025. She did not appear at the hearing. She had informed the court of her change of address on two previous occasions. She knew her obligation to update the court with her address. She would have informed the court if she had moved. The delivery service of Hong Kong Post is usually very reliable. The notice has not been returned through the post. The Court was satisfied that the notice of hearing had been duly served on her. 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 her leave application may be justly determined on paper without an oral hearing. Accordingly, the Court proceeded to determine her leave application on paper.
Background
3. The Applicant is a national of the Republic of Philippines. She had previously come to work in Hong Kong. She last entered Hong Kong on 29 November 2011 to take up employment as a foreign domestic helper. She overstayed since 14 December 2012 after her employment was prematurely terminated. She surrendered to the Immigration Department on 23 April 2015. On 8 June 2015, she raised a non-refoulement claim by way of written signification. 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 against the Notice was dismissed by the Board’s Decision dated 3 September 2019 and not 30 April 2019. The Board had not made any decision dated 30 April 2019 in respect of her in the non-refoulement context. The date of the hearing of her appeal was 30 April 2019. The decision of the appeal was issued on 3 September 2019. It must have been her intention to apply for leave to apply for judicial review of the Board’s decision dated 3 September 2019. Accordingly, leave was granted to amend the date of the Decision to 3 September 2019.
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 (the “NCF”) prepared by her with legal assistance and the record of her screening interview (the “ROI”) in the presence of her lawyer. In gist, she claims, if returned to the Philippines, she will be harmed or killed by a moneylender called Balagtas (“Balagtas”) for being unable to repay her loan owed to him.
5. The Applicant, now aged 48 was born in the province of Bulacan. She had received eleven years’ education and had worked as a quality controller in a shoe factory, as a self-employed person selling self-made candies and as a foreign domestic helper in Hong Kong. She is divorced with three children.
6. The Applicant borrowed a number of small loans from various moneylenders. She used one loan to cover another and the interest. As Balagtas was her the biggest lender, she borrowed from small moneylenders to repay Balagtas in order to maintain a good record with him. Finally, her loans grew up to 800,000 Philippine Peso (“PHP”) which was beyond what she could repay. She is also in fear that she will be put in prison for being unable to repay the other moneylenders.
7. On one occasion in 2010, Balagtas came to her mother’s home where she was then staying. He and her mother had an argument. During the argument, Balagtas forced the Applicant to leave. He cupped and slapped her face and demanded her to repay her loan. The Applicant moved out. She did not suffer any injury. She later learned from the news that Balagtas had fought and punched a debtor in a market who later died as a result. She had actually seen the man arguing with Balagtas in the market. As a result, she was scared. Thus, she came to work in Hong Kong on 29 November 2011 to avoid the moneylender. While in Hong Kong, her mother told her on the telephone that Balagtas had been to her mother’s house looking for her.
Finding of the Board
8. The Applicant testified before the Board. The Board found numerous and significant inconsistencies among her testimony before the Board, her NCF and ROI which could not be reconciled by her explanation. Hereunder are some significant inconsistencies.
9. In her NCF, she said she borrowed from Balagtas since 2010 for her business and that she had run her business between 2006 and 2011. But she told the Board in her testimony that she started to borrow from Balagtas since 2001. In her NCF, she said she borrowed from other moneylenders to repay Balagtas so as to maintain a good record with him. But her evidence is that she had never repaid the loans from Balagtas. She took out a loan from Balagtas to pay off an earlier loan also from Balagtas. In her NCF, she said that Balagtas cupped and slapped her face, but mentioned nothing about threats to kill her. In her testimony, she added that Balagtas said he would kill her and she must pay and that he sent her death messages many times. When confronted with the inconsistencies, the Applicant denied that she had failed to mention the threats when filling in her NCF and put the blame on her lawyer. She said she could not read English and did not know the details had been omitted. When it was suggested to her that the NCF had been read back to her before she signed, she excused herself by saying that she did not notice the omissions.
10. In her NCF, she said she heard the news that Balagtas had a fight with a debtor resulting in the debtor’s death. In the ROI, she fortified that evidence by saying that she actually witnessed the argument between Balagtas and the debtor as the incident happened close to her shop. In her testimony, she escalated her evidence to the effect that she actually saw the fight. If what she said in her testimony had actually occurred and she was really concerned about her safety, she would not have failed to mention in the NCF that she witnessed the argument and the fight.
11. She came to work in Hong Kong since November 2011 out of fear for her safety. Her employment was terminated after about three months and then she overstayed for about two and half years before surrendering to the Immigration Department and then made the non-refoulement claim. The Board rejected her explanation that she did not do so because she was not aware of the availability of protection in Hong Kong, though it did not expressly drew adverse inference for her failure to make a prompt claim.
12. In view of these multiple and significant inconsistencies, the Board found the Applicant’s evidence unreliable and incredible. It came to the conclusion that she had failed to prove she had borrowed PHP 800,000 from Belagtas; that she had been assaulted and threatened by him in her mother’s home and on other occasions; that Balagtas and a debtor argued and fought in a wet market (including necessarily killing the debtor as well); and that she had borrowed about PHP two million from other moneylenders and was threatened by them as well. These facts, if proved, constitute the centrepiece of the Applicant’s claim. The Applicant having failed to prove these facts even to the low standard of proof required, she has failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. Accordingly, the Board dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
13. 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
14. The Applicant did not advance any grounds of review in her Form 86. In her supporting affirmation, she objected to the Board’s finding and reiterated that the Board disregarded her dangerous situation, if returned to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that he would face real harm or real risk of harm, if returned to her home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review, save for error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
15. 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 found the Applicant incredible as regards the centerpiece of her claim. It was not satisfied that she was a credible and reliable witness. It found she had failed to prove the debts owed to Balagtas and her other moneylenders, the threats and her fears. It gave full reasons for its finding. It was on that basis that the Board found the Applicant 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 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 her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
16. For the above reasons, the leave application is refused.
Dated the 20th day of May 2025
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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 20/05/2025
Deuna Leila De Leon
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 20/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11661/18/5/246/F727
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1459/18 (formerly as RBCZ/12423/15)
Department of Justice,
Senior Assistant Law Officer
(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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