NOLASCO MARIDEL SAMSON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1958/2019

[2024] HKCFI 2570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1958 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Nolasco Maridel Samson (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 3 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The Applicant did not attend the court hearing scheduled for 5 September 2024 for her application for leave to apply for judicial review despite notice of hearing having been sent to her on 21 August 2024.  I proceed to deal with this application according to papers already placed before the court.

Background of the Applicant

3.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Filipino.  She was born on 16 December 1972 in Quezon Province, Bulacan, the Philippines. 

4.  She received 15.5 years of education and had 14 years of work experience.  She worked as a foreign domestic helper in Hong Kong from 2000 to 2002 and from 2008 to 2014.

The Claim

5.  The Applicant relied on the following facts for her claim.  She married a Hong Kong resident (“NCY”) on 16 July 2013 when she was working in Hong Kong for NCY.  Her application to change her immigration status to a dependent of NCY was rejected and she returned to the Philippines at the beginning of 2015.

6.  The Applicant borrowed ₱100,000 (“Loan”) from a Mr Buenaventura (“Creditor”) in June 2015 to fund her trip to Hong Kong to find NCY.  The Creditor was introduced to her through a friend and she did not sign any document for the Loan.  The Creditor owned a car-repairing shop in the Philippines and operated a money lending business on the side.  The Loan was due by the end of December 2015.

7.  The Applicant arrived in Hong Kong on 8 June 2015 but was told by the neighbours of NCY that he had moved from his home and his whereabouts was unknown.  Upon learning about this news, she went to Macau to work as a foreign domestic helper.

8.  Her contract in Macau was terminated in November 2015.  She did not make any repayment to the Creditor because she needed the money for her children to go to school in the Philippines.

9.  Towards the end of December 2015, the Applicant’s son told her over the phone that the Creditor went to her house in the Philippines to collect the Loan.  The Creditor vowed to use foul language to insult her and even kill her if she did not repay the Loan.  The Creditor did not physically harm her family.  The Creditor made another visit at her house later and repeated the same threat.

10.  The Applicant claimed that she would be harmed or ill-treated by the Creditor if she were returned to the Philippines.  The Creditor would not give her a chance to work in the Philippines to repay the Loan because he would harm her upon her return.

Procedural history

11.  The Applicant last arrived in Hong Kong on 24 December 2015 as a visitor and was given permission to remain in Hong Kong until 7 January 2016.  She overstayed and surrendered to the Immigration Department on 15 January 2016.

12.  By written submissions dated 15 January 2016 and 7 February 2018, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

14.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

15.  On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

The DOI Decision

16.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditor intended to harm the Applicant.  This was because the Creditor never caused her or her son in the Philippines any harm.  The absence of ill-treatment from the Creditor in the past was indicative of a small future risk of harm upon the Applicant’s return to the Philippines.

17.  The Director considered that the threat by the Creditor to harm the Applicant upon her return to be a means to pressure her into paying back the Loan and that he did not intend to cause her any serious harm.  Having considered the nature, frequency and extent of sufferings claimed by the Applicant, the Director did not accept that the alleged ill-treatment (both physical and mental) attained a minimum level of severity.  The Director also did not accept that the Applicant’s perceived ill-treatment from the Creditor, whether physical or mental, was as imminent, foreseeable, and substantial as asserted.

18.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director was of the view that there might be some inefficiency within the Philippine police but there were objective indications in the COI that the Philippine government took steps to improve the effectiveness of the police. The Director found that the Philippine government was able and willing to protect the rights of its citizens.  The availability of state protection further lowered or negated the Applicant’s perceived level of risk.

19.  The Director further found that internal relocation would be viable.  If the Applicant moved to Quezon City or Manila, the Creditor would have great difficulty in locating her.  There were no substantial grounds for believing that the Creditor would or could mobilize and utilize huge power and resources, if any, to pursue the Applicant throughout the country merely because of her default in repayment of the Loan. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, the Board formed the view that the Applicant was not a witness of truth and that her evidence was incredible.

22.  In §§44-47 of the Board’s Decision, the Board set out its analysis on the Applicant’s evidence leading to its aforesaid findings.  The Board did not accept that the Applicant borrowed money from a creditor in the Philippines and still owed this money.  The Board did not accept that if the Applicant returned to the Philippines, she would face any harm from her alleged creditor because of any debt she owed to him.

23.  At the hearing, the Applicant told the Board that her father and her brothers were shot dead in 2002 and 2008, respectively.  She also claimed that people returning to the Philippines after working overseas had been held against their will in the past.  She further claimed that her neighbour had been killed.  The Board noted that the above were serious allegations but none of the above was mentioned in her case to the Director.  The Board found those to be incredible and further undermined her credibility.

24.  The Applicant mentioned that she was ashamed of her failed marriage.  The Board found that this personal concern was incapable of giving rise to any claim for non-refoulement protection. 

25.  Because the Board held that the Applicant’s claim was wholly incredible, she failed to establish any risk of harm to her upon her return.  As the Board did not accept the fundamental basis of the Applicant’s claim that she faced any form of harm upon her return to the Philippines, the Board did not see the necessity to consider the availability of state protection or internal relocation.

26.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

27.  In a judicial review, the court does not step into the shoes of the decision makers.

28.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.  In the Form 86, the Applicant did not specify any grounds for her intended judicial review.

31.  In the Supporting Affidavit, the Applicant only stated that:

“ I told the facts already in my case officer and thats all true that my life in danger that’s why I can’t go back to Philippines. I would like like [sic] to review”.

32.  The Applicant exhibited a copy of the Board’s Decision and a copy of the Notice of Removal Order to the Supporting Affidavit without other supporting documents.

33.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

34.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 very high standards of fairness. 

35.  The Board found that the Applicant’s claims not credible for reasons set out in §§44-47 of the Board’s Decision.  The Board did not accept that the Applicant had borrowed money from anyone in the Philippines and still owed this money.  As such, the Applicant would not face any form of harm upon her returning to the Philippines.

36.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

Conclusion

37.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this 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