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HCAL 201/2022
[2024] HKCFI 3452
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 201 of 2022
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Larit Irene Depalan |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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:
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 13 April 2022 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 10 February 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 December 2020 (the “Notice”) refusing her application for non-refoulement protection.
2. The Applicant had requested an oral hearing. However, before her leave application came to be processed, she had been removed and returned to her home country on 14 December 2023. Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is a Filipino national. She last entered Hong Kong on 7 September 2017 to work as a foreign domestic helper. She overstayed since 24 August 2019 after her employment was pre-maturely terminated. On 26 May 2020, she surrendered to the Immigration Department. She made a non-refoulement claim by way of written representations dated 4 June 2020. In due course, her 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 was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
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 prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the Applicant claims she will be harmed or killed by her husband, if returned to the Philippines.
5. The Applicant, now aged 39, was born and raised in Hinigaran, Negros Occidental, the Philippines. She had received 10 years’ formal education and had 10 years’ experience working as a trimmer operator and a domestic helper in Saudi Arabia and Hong Kong. She was married in 2004 and has three children. They are all living in the Philippines.
6. The Applicant claimed that her husband subjected her to domestic violence after she gave birth to their first child in 2005. He assaulted her three to four times a week. When he got drunk, he slapped her face, punched her and kicked her. The violence was more intense if he had taken drugs. The Applicant self-treated her injuries at home. She did not register any complaints with the police because her husband had threatened to kill her if she did.
7. In 2007, the Applicant and her husband moved to Manila to look for job opportunities. The situation became worse because she found a job and people liked her. Her husband assaulted her out of his jealousy and anger. He also threatened her with a knife. In 2013, the Applicant was forced to have sex with him and became pregnant with twins. She then moved back to Hinigaran to stay with her mother.
8. In December 2014, her husband visited her in Hinigaran. During those two months, he assaulted her. She formed the opinion that her life would be in danger if she continued to stay with him. To get away from her husband, she went to work in Saudi Arabia in 2015. After she left the country, her husband did not visit her mother and their children. He had never hurt them. The Applicant blocked her Facebook account so that her husband could not know where she was.
9. The Applicant claims that she did not know of any organisations in the Philippines which provide assistance to women suffering domestic violence. She does not believe internal relocation would be viable, as she does not have family or relatives to support her outside her home town.
The finding of the Board
10. The Applicant testified before the Board. The Board accepted her account of events as credible. However, it found on the basis of her account, there were no substantial grounds to believe her risk of being harmed or killed by her husband upon her return to the Philippines was real and foreseeable. There was no objective evidence to show that her husband had any intention or resources to search for her in the Philippines, or that he was influential and powerful. Furthermore, the Board was satisfied on the basis of objective country of origin information that reasonable state protection is available to the Applicant and she could also relocate to other parts of the country to avoid the perceived risk, which was localised within her home town. On this premise, the Board concluded that the perceived risks were not as imminent or substantial. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
11. 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
12. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she reiterated that her life was still in danger in 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. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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.
Overall scrutiny
13. 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. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law 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
14. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
15. The Court does not have the Applicant contact address in the Philippines. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forwarded them to the Applicant.
Dated the 9th day of December 2024
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( Seline Sze )
for Registrar, High Court |
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 09/12/2024
Larit Irene Depalan
Applicant’s ref. no:
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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 09/12/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17512/21/1/8/F1227
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 59/20
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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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