DIMALANTA SALOME LUPOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 583/2019

[2024] HKCFI 1411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 583 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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 1 March 2019 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 15 February 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 October 2018 (the “Notice”).

2.  The Applicant is a Philippine national. She last entered Hong Kong on 5 August 2011 to work as a foreign domestic helper. She overstayed in Hong Kong and was arrested on 22 March 2015 for breach of condition of stay. On around 27 March 2015, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice of Decision dated 8 October 2018 (the “Notice”), the Director rejected her claim. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed by her husband upon her return for refusing to meet his demand for money.

4.  The Applicant, now aged 40, was born in Isabela, Philippines. She received 14 years of education and has worked as a domestic helper in the Philippines and in Hong Kong. She married her husband in 2006 and gave birth to their sons in 2006 and in 2008. Her husband was addicted to gambling before they married. After their marriage, he quit gambling for a period of time but resumed gambling again in 2010.

5.  She started working as a foreign domestic helper in around May 2009 and returned to the Philippines for holiday in around July 2011. One day when the Applicant was visiting her mother, her husband demanded her to hand over all her savings to him. The Applicant refused and he threatened to seize the money from her. He slapped her on her face once in front of her mother and their sons. He repeated the demand after they returned home. The Applicant refused. In the heat of the quarrel, her husband threw a knife at her in front of their children. The Applicant was not harmed and gave him 5000 pesos. She then fled to her mother’s home with their children.

6.  The next morning, her husband went to her mother’s home and demanded the Applicant returned to his home. He screamed and threatened to kill her unless she returned. The Applicant fled from the back door, leaving their children to the care of her mother. She went to live with her cousin in Quezon Town for five days before returning to Hong Kong in August 2011.

7.  Since then, she stopped remitting money to her husband. About five months later, her husband called her and demanded money. She refused saying that she did not want to give him money for drinking and gambling. She also told him that she wanted to divorce him. Her husband retorted that he will kill her when she returned to the Philippines. Thereafter, they ceased all communication. Their children were taken care of by her husband’s mother.

8.  On 29 July 2018, the Applicant learnt from her sister in the Philippines that her husband had moved to Manila. Her sister said that her husband had asked his relatives to inform him if they saw the Applicant as he wanted to kill her. Her sister also told her that her husband accompanied her son whenever her son visited her mother to check if the Applicant had returned. The Applicant considers it unsafe to return to the Philippines because the Philippine police will not give her protection in family disputes. She also considers internal relocation not feasible because her husband had friends who worked in the Philippine police force and they could help him locate her.

The finding of the Board

9.  The Applicant testified before the Board. The Board accepted her evidence of the events as credible and her fear of being harmed or killed by her husband genuine. However, it found there was no objective basis for such fear because adequate state protection will be available and internal relocation feasible.

10.  The Board noted from authoritative and credible country of origin information (“COI”) that while violence against women is widespread in the Philippines, the government has taken steps to help disadvantaged women including victims of domestic violence. These assistance include providing temporary shelter and counselling service, special access to the police through the ‘women’s desk’, protection order issued by the Barangay. It considered her aversion to seeking help from the authorities without basis and that adequate state protection would be available to her if she chose to seek help in the future.

11.  The Board found her husband’s threats were uttered in the heat of the moment and there was nothing to suggest that his threats were otherwise than empty threats which were made without any real intention for them to be executed. Her husband was only a farmer by occupation with drinking and gambling problems. While he might have friends in the police, the Board doubted if his friends were able or willing to help him locate the Applicant. The Board therefore found as an able-bodied adult with a bachelor degree education, it would not be unduly harsh or unreasonable to expect the Applicant to relocate to other cities in the Philippines, such as Cebu or Davao, to avoid the risk of harm from her husband.

12.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

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[5].

Grounds for judicial review

14.  The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only annexed a copy of the Notice and the Decision. She had been invited by the Court via its letter dated 21 February 2024 to advise the Court of her first language, contact number and to file submissions. She responded but did not file any submissions. At the hearing, after the legal principles had been explained to her, she confirmed she had no particular complaints but requested the Court to allow her to stay in Hong Kong. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, ie error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

15.  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 accepted the Applicant’s account on the basis of her evidence and that she was genuinely in fear of harm from her husband. The Applicant could not have any complaint about this finding of primary facts. On the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for her fears and her feared risk of harm is not real. Furthermore, on the basis of authoritative and credible COI, the Board was satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real. 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. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

16.  For the above reasons, the Applicant’s 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