TAMAYO KRISTINE CATAYNA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1679/2018

[2019] HKCFI 1616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1679 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;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  There are three applicants here; the 1^st applicant and her two children.  The 1^st applicant is a national of the Philippines who came to work in Hong Kong as a foreign domestic helper in 2010.  She met a Pakistani man in July 2011 who was Muslim; she was a Roman Catholic.  She became pregnant with her twins out of wedlock and the father of the children disappeared.  They were born on 24 November 2013.  

2.  All the applicants claimed non-refoulement protection on 12 October 2015.  The Director of Immigration (“the Director”) rejected their claims under all applicable grounds on 7 July 2017.  The applicants filed an appeal/petition to the Torture Claims Appeal Board (“the TCAB”) on 19 July 2017.  The TCAB conducted an oral hearing on 19 March 2018.  Their appeal/petition was dismissed on 14 August 2018.  The applicants filed a notice of application for leave to apply for judicial review on 20 August 2018.  The applicants have not requested an oral hearing therefore, I considered their application on the papers.

3.  The basis of their claim was that if they were to return to the Philippines, they would all be harmed or even killed by the 1^st applicant’s brother.  The brother was angry that the 1^st applicant who was Roman Catholic, had had an affair with a Pakistani Muslim and had children out of wedlock.  The brother was a violent man and the entire family was afraid of him.

4.  The 1^st applicant had told her boyfriend at the time that she was pregnant in early 2013.  He disappeared and she subsequently found out that he had returned to Pakistan and married his fiancée there.  She has had little or no contact with him since.  In October 2013, she was granted maternity leave and return to the Philippines to give birth.  At that time her brother was in Saudi Arabia working.  In January 2014, the 1^st applicant returned to Hong Kong alone to start a new foreign domestic helper contract.  Her children were left with her family in the Philippines.

5.  The children came to Hong Kong in July 2015 when the 1^st applicant found out that her brother was returning home to the Philippines from Saudi Arabia.  She feared that her brother may harm her children so she brought them to Hong Kong.  Her employer initially let her continue with her contract but terminated it on 19 August 2015.  As she was unable to find a new employer, she decided not to leave Hong Kong but to overstay in breach of her conditions of stay.  She has remained here with her children.

6.  The 1^st applicant surrendered to the Immigration Department when her family told her that her brother was staying in the Philippines and was so angry that he might kill her and her children if they ever returned home.  Both the Director and the adjudicator of the TCAB gave full details of the 1^st applicant’s evidence and case in their decisions therefore, there is no need to repeat it all here.

7.  The adjudicator, as did the Director, analysed the applicants’ claim under all applicable grounds;

a.  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, (“torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator treated the appeal as a rehearing.  She correctly set out the law and key legal principles for the four applicable grounds.  She set out the country of origin information that she relied on and considered.  She set out the 1^st applicant’s evidence in detail as well as her consideration and analysis of it.  The adjudicator had her doubts about the credibility of the applicant’s claim and evidence.  She did give her an opportunity to make explanations and give further evidence.  She found various discrepancies in her evidence that led to her finding the applicant was not credible.  She set out those discrepancies in her decision.

9.  Despite the adjudicator’s finding that the applicants were not genuine claimants and faced no risk if refouled, she did go on to consider country of origin information and did make a finding on state protection.  She found that state protection would be available for all the applicants if required.  She also found that internal relocation to other major urban areas was a viable option for the applicants.

10.  The adjudicator found there to be no foreseeable, real and personal risk of being subjected to torture or a real chance of a reasonable likelihood of the applicants being persecuted if they returned home.  The adjudicator found the applicants were unsuccessful in showing they were at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for a refugee Convention reason for the purposes of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  The 1^st applicant has listed both the TCAB and the Director as proposed respondents but then seeks only relief against the TCAB’s decision.  I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicants have already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicants would have covered all mistakes they say the Director made in his appeal to the TCAB.  Anyway, the TCAB would have looked at it to ensure no errors as it treated their appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

12.  The supporting affirmation only sets out one ground and that is the TCAB did not consider what danger the applicants faced.  There were no particulars to support this ground.

13.  I have considered the papers with rigorous examination and anxious scrutiny as is required.  I find the adjudicator’s decision to be without fault.  She has meticulously analysed the evidence and given full reasons for her finding that the applicant was not a genuine claimant.  I will not interfere with her decision.  I find no substance in the sole ground of this application; it was not particularised or substantiated.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In fact, the same applies to the decision of the Director.

14.  In my judgement, the applicants’ claims are not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to all three applicants 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