FERNANDEZ MARICEL BOLOAVIO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 299/2019

[2022] HKCFI 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 299 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;

Leave to apply for Judicial Review refused.

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

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 28 January 2019 (the “Notice”).  Enquiries with the Director revealed that the Director had not made any decision relating to the Applicant bearing that date.  The procedural history was that the Director had issued a Notice of Decision dated 12 September 2018 refusing her application for non-refoulement protection; the Applicant then appealed to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”); and by its decision dated 28 January 2019 the Board dismissed her appeal (the “Decision”).  Hence, in the best interest of the Applicant and for her benefit, the Court treated her application as if it were made against the decision of the Director in the Notice and the Decision of the Board.  If there were merits in such an application, the Court shall grant leave to amend the application accordingly and grant leave to apply for judicial review against the appropriate decision.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also.  

3.  The Applicant arrived in Hong Kong on 25 April 2010.  She was permitted to remain as a visitor until 9 May 2010, but she overstayed thereafter.  On 17 July 2010, she lodged a torture claim under Part VIIC of the Immigration Ordinance (“Torture Risk”).  She completed her torture claim form (“TCF”) on 5 March 2013 with the help of the Duty Lawyer Service and attended a screening interview on 22 March 2013.  Her torture claim was rejected by the Director on 26 March 2013.  She did not appeal against that decision and that decision became final.

4.  On 9, 25 and 29 July 2014, the Applicant submitted written representations to initiate her claim for non-refoulement protection under the Unified Screening Mechanism which became operative since 3 March 2014.

5.  In due course, her non-refoulement claim was assessed on all three remaining applicable grounds available under the Unified Screening Mechanism (“USM”) other than Torture Risk ground, namely: BOR 3 Risk ground[2]; BOR 2 Risk ground[3], and Persecution Risk ground[4]. The Torture Risk ground was not available to her as the decision of the Director on 26 March 2013 had become final. 

6.  As mentioned above, the Applicant’s non-refoulement claim was dismissed by the Director’s Notice dated 12 September 2018 and her appeal against that decision was dismissed by the Board in its Decision dated 28 January 2019.  She now seeks to apply for leave to apply for judicial review of these decisions.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in her TCF form prepared by her with assistance of the Duty Lawyer Service, the record of her screening interview with an immigration officer, her written representations and her evidence at the oral hearing before the Board.  In essence, her case is that she is in fear of being killed by the murders of her uncle for having witnessed the murder. 

8.  The Applicant is a national of Philippines born in 1985.  She is 36 years old and single.  She had received 12 years’ formal education.  She had worked as a part time salesperson and a waitress.  Then she worked as a vendor in a school from May to June 2009 shortly before the murder. 

9.  The Applicant, her two brothers and her parents lived in a house in a remote village.  Her maternal grandmother, her uncle and his daughter lived in a neighbouring house.  Her uncle operated a vulcanizing shop 15 minutes’ walk from her home.

10.  One night in June 2009 at about 8 pm, the Applicant was walking with her uncle towards her uncle’s shop when two unknown men on a motorcycle called for her uncle’s services.  The Applicant stepped aside while her uncle conversed with the two men.  Suddenly, they stabbed her uncle with a knife.  The Applicant was scared and ran away to hide herself at the corner of the street.  After the incident, the Applicant went straight back home without checking out her uncle’s condition.  There was no one at her home or at her uncle’s home.  She kept crying in her room until her family members returned.  She told them what had happened.  Her parents told her to stay at home and not to go out because the attackers might come back.

11.  Later, the Applicant went to hide in various distant locations until July 2009 when she stayed at a friend’s home just 15 minutes’ walk from her own home.  She was told by her family members that they had received three threatening letters stating that she would be killed if she were to go forward to testify in connection with the murder.  They also told her friend that they saw some people making observations around her home and enquiries from the neighbours as to her whereabouts.  They also found a dead cat in a box placed at the door of their house. 

12.  Eventually, her friend and her friend’s sister paid and arranged for her passage to Hong Kong.  Her friend’s sister who came to work in Hong Kong accompanied her on the trip on 25 April 2010.

The finding of the Board

13.  The Board consider the Applicant’s account inherently improbable.  For example, given the close relationship between the Applicant and her uncle, the Board found it improbable that she would have rushed home without checking the conditions of her uncle after the attackers had left and when some passers-by had arrived and called for the police; that she would have moved back close to her home to live with her friend after she had gone hiding in some distant locations; and that her friend would have paid and arranged for her passage to Hong Kong.

14.  The Board found numerous inconsistencies between her evidence in the TCF and her evidence at the oral hearing.  The most significant one is whether she went back home immediately after the murder incident and waited for her family members to return as she said in her oral testimony or that she went hiding in her friend’s home for the first 20 days after the incident as she said in Answer 33-5 of the TCF.  Her explanation was that when completing the TCF she was never asked whether she had returned home after the attack.  The centrepiece of her case is her fear upon seeing the murder.  If she were telling the truth, it is difficult to explain why she would have given two irreconcilable accounts. That explanation was rejected by the Board.  Likewise, her Answer 33-6 that her friend told her brothers about her fear and the murder conflicted with her oral testimony that she had discussed with the brothers before she went hiding.  Her explanation was her friend did not know she had discussed with her brothers about the murder.  That explanation did not stand well with the tenor of her evidence and was rejected by the Board.  She was also inconsistent as to whether she had made home visits while hiding in her friend’s home. 

15.  The Board considered the Applicant to be an unreliable witness, her evidence is not credible and her case not genuine.  The Board found she had not proved the primary facts of her case.  The Board did not accept that her uncle was attacked and murdered or that she and her family members had been subject to any threats or threatening circumstances, that there was any syndicate acting against her and/or her family members and that she was under any mental suffering.  The Board concluded that she had not been subject to and is not under any risk or danger[5].  This finding is fatal to her claim. 

Grounds for judicial review

16.  The Applicant did not put forward any grounds in her notice of application for leave to apply for judicial review (Form 86) as required.  In her affidavit in support, she asserted:

“I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation.”

She did not put forward any grounds for applying for judicial review and gave no particulars of her challenge against the decision of the Director in the Notice or the Decision of the Board.  Basically, she was not satisfied with the decisions and in particular the finding that she was not at risk. 

17.  The Applicant was invited by letter dated 25 May 2021 to file, inter alia, any submission which she would like to make for the purpose of enabling the Court to understand her case.  She did not respond.

The applicable legal principles

18.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  

Conclusion

19.  As the Applicant has not advanced any specific grounds for application other than complaining that the Board disregarded her dangerous situation, her application is essentially a challenge against the Board’s finding of fact.   Thus, the Court could only focus its attention on possible criticisms of the Decision on the basis of error of law, procedural unfairness and irrationality.

20.  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 three remaining applicable grounds under the USM; the burden of proof and standard of proof.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge her burden of proving her fears and risks.   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 was unable to find any error of law in the Decision. The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Court was satisfied that the Board had observed a very high standard of fairness.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is absolutely no prospect of success in the proposed judicial review of the decision of the Director of Immigration dated 28 January 2019 as the Director has never made any such decision.  There is also no realistic prospect of success in a judicial review against the Decision of the Board, even if the application were appropriately amended.  It would be futile to grant leave to amend the application.

21.  For the above reasons, leave to apply for judicial review was 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

[1]  [2018] HKCA 549

[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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Paragraph 161 to 163 of the Decision

[6] [2018] HKCA 524 at para 14(1)