CALUZA VICKY BALONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 516/2019

[2023] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.516 of 2019

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 to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 22 February 2019 for leave to apply for judicial review of a decision of the Director of Immigration (the “Director”) dated 8 February 2019. The Director is named as both the Respondent and the interested Party. In her supporting affirmation, the 1^st Applicant’s specifically deposed that she wishes to challenge the decision of the Director.

2.  The Court’s enquiries revealed that the Director had not made any decision in respect of the Applicants dated 8 February 2019, but had made a decision in his Notice of Decision dated 6 July 2018 refusing the Applicants’ application for non-refoulement protection (the “Notice”). Then, the Applicants appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) against the Notice, but their appeal was dismissed by the decision of the Board dated 8 February 2019 (the “Decision”). It is therefore clear that the intention of the Applicants is to seek judicial review of the Decision of the Board dated 8 February 2019. Furthermore, while the Decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not, because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance Cap. 115 and the Applicants have invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. Leave is therefore given to amend the Form 86 making the Board the proposed respondent, the Director an interested party and the Board’s Decision the decision in respect of which relief is sought.

3.  As the 2^nd Applicant is a minor, the 1^st Applicant who represents her had been advised by letter of this Court dated 28 April 2022 to seek legal representation by the Legal Aid Department or private solicitors. More than eight months have lapsed since the date of the Court’s letter. The 1^st Applicant has not taken any steps to arrange legal representation for the 2^nd Applicant. Having considered the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with issuing of this Form CALL-1. The Applicants 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 that pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A) the application may be justly determined on paper without an oral hearing.

4.  The Court noted from the new documents submitted by the 1^st Applicant that she had given birth to another daughter on 12 October 2021 well after the date of the Decision. As no decision had been made by the Board in respect of this daughter, the Court did not consider it appropriate to join her in this leave application.

5.  The 1^st Applicant is national of the Philippines, now aged 45. She last entered Hong Kong on 10 September 2016 to work as a foreign domestic helper. She over-stayed after her employment contract was prematurely terminated on 15 December 2016. She surrendered to the Immigration Department on 16 February 2017. She then raised her non-refoulement claim by way of written submissions dated 31 July 2017 and 23 October 2017. Around that time, the Applicant gave birth to the 2^nd Applicant on 15 July 2017 and then lodged a non-refoulement claim on her behalf on 1 November 2017.

6.  In due course, the Applicants’ non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Their claims were dismissed by the Director’s Notice. Their appeal against the Notice was dismissed by the Decision of the Board. They now seek leave to apply for judicial review of that Decision.

The Applicants’ case

7.  The following account of the Applicants’ case is mainly based on the information in their non-refoulement claim forms (“NCFs”) prepared by 1^st Applicant with legal assistance. In gist, the basis of the Applicants’ claims is that they would be ill-treated or killed by the 1^st Applicant’s husband because the 1^st Applicant had a relationship with another man and gave birth to the 2^nd Applicant.

8.  The 1^st Applicant was born in the Philippines. She received 12 years of education and had about 9 years of working experience. She married her husband in 1999 and they have four children. She alleged that her husband was an alcoholic and physically assaulted her and their children on numerous occasions when he was drunk. His violence escalated since 2010 when he began taking illicit drugs and his mental health was affected. The 1^st Applicant did not seek medical attention or report to the police as she felt shameful for being abused by her husband. Shortly after the 1^st Applicant came to work in Hong Kong in 2015, their children were looked after by relative to avoid further abuse by her husband.

9.  The 1^st Applicant happened to come across her husband when she returned to the Philippines to visit her children in her grandparent’s home on 27 August 2016. She attempted to discuss her separation issue with her husband, but he refused and threatened to kill her if he ever found she was with another man. After the 1^st Applicant returned to Hong Kong in September 2016, her husband again made the similar threats to her via Facebook. Unknown to her husband, at the time the 1^st Applicant was already in courtship with another and she gave birth to the 2^nd Applicant on 15 July 2017. When the 1^st Applicant’s eldest daughter told the Applicant’s husband of this news, her husband responded “…Do not let me see [the 1^st Applicant’s] face and [the 2^nd Applicant]’s face. Otherwise, something bad will definitely happen on (sic) them.” Because of this, the 1^st Applicant fears that her husband will harm both her and the 2^nd Applicant, if they return to the Philippines.

The finding of the Board

10.  An oral hearing was scheduled to enable the Applicants to inform the Board of any additional facts or evidence which they wished to be included, but the 1^st Applicant confirmed that “[she has] said everything in the hearing bundle.” The Board assessed their claim on the basis of the facts as they asserted. On those facts, the Board found that the dispute between the Applicant and her husband was domestic and private in nature and the injuries inflicted on the 1^st Applicant were not serious. The Board found that the husband had no intention to actual carry out the threats as evidenced by the husband’s voluntarily disconnected himself from the Facebook account. Further, the Board was of the view that the verbal threat made by the husband when she returned to the Philippines in 2016 was likely an act of frustration at an unfaithful wife.

11.  On the basis of authoritative and credible Country of Origin Information (“COI”), the Board was satisfied that adequate state protection is available and that the Applicants could access internal relocation to other places in the Philippines, such as Manila, Cebu and Davao City to avoid the risk of harm from her husband should the harm materialise.

12.  Applying the legal principles applicable to non-refoulement protection under the USM to the facts found, the Board found the Applicants had failed to establish the factual basis in support of their claim for protection under any of the applicable grounds under the USM. Hence, it upheld the Director’s decision in the Notice and dismissed the Applicants’ appeal.

The 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[6].

Grounds of application

14.  The Applicants’ ground for judicial review as stated in their supporting affirmation is that the Board disregarded their dangerous situation. In effect, hey are disputing the finding of fact by the Board, which for reasons as explained above is not permissible. Absent any particular grounds for application, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision.

Discussion and conclusion

15.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker, save where such finding is the result of errors of law, procedural unfairness or irrationality.

16.  The Court noted that the Board did not seem to have assessed the 2^nd Applicant’s claim separately from the 1^st Applicant’s. The two Applicants’ claim arose from the same factual matrix, ie the 1^st Applicant's extra marital relationship and the birth of the 2^nd Applicant outside of wedlock. The factual basis of their claim is entirely the same. The source of feared harm is the same, ie the 1^st Applicant’s husband. The nature of the feared harm from the 1^st Applicant’s husband is the same, ie physical violence and death. The Applicants have not advanced any child-specific basis of claim specific to the 2^nd Applicant. The 2^nd Applicant’s feared harm is therefore solely hinged on the 1^st Applicant’s. Hence, there is no need for the Board to artificially considered the claim of the 2^nd Applicant separately from the 1^st Applicants’.

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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. The Applicants did not advance any reasons or argument as to what is wrong with the Decision. The Board’s finding that the Applicants are not entitled to protection is a mixed question of fact and law. Insofar as the finding of fact is concerned, the Applicants cannot complain about the Board’s primary finding of fact as the Board accepted their evidence in total and assessed their claim on the basis of their case as they asserted. But even on that evidence, it found they had failed to prove the factual basis to support of their case. This is a secondary finding of fact based on the Applicants’ own evidence as they asserted which the Court in a judicial review will not interfere, save where such finding is the result of errors of law, procedural unfairness or irrationality. Insofar as application of the law to the fact is concerned, the Court could not identify any errors of law in the Decision or procedural unfairness. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

18.  For the above reasons, the Applicants’ application for leave to apply for judicial review 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