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HCAL 1936/2019 and HCAL 498/2020
(Heard together)
[2025] HKCFI 475
HCAL 1936/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1936 of 2019
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BETWEEN
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Manto Jacqueline Medado |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
AND
HCAL498/2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 498 of 2020
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BETWEEN
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Manto Jacqueline Medado |
1st Applicant |
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Hossain Jamil |
2nd Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
(Heard together)
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 Applicants:
Introduction
1. There are two applications for leave to apply for judicial review before the Court. In HCAL 1936/2019, the applicant, Ms Manto Jacqueline Medado (the “mother”), sought to review the decision of the Torture Claim Board dated 3 July 2019 (“Decision (1)”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 November 2018 (“Notice (1)”) refusing her claim for non-refoulement protection.
2. In the meantime, the mother gave birth to her son (the “son”) on 31 December 2018, Then she applied to the Director for non-refoulement protection on behalf of her son. Her son’s application was rejected by the Director by his notice of decision dated 19 June 2019 (“Notice (2)”). Her son’s appeal against Notice (2) was dismissed by the Board’s decision dated 9 January 2020 (“Decision (2)”). On 6 April 2020, the mother sought leave to apply for judicial review of that decision in HCAL 498/2020. She named herself as the applicant but she is not a party to the decision sought to be reviewed.
3. Then, on 9 September 2020, the mother took out a summons in HCAL 498/2020 to join her son, but no draft amended Form 86 was attached to the summons. Deputy Judge Bruno Chan granted her leave to join her son in HCAL 498/2020 and named her as the “1st Applicant” and her son as the “2nd Applicant”. He also directed them to file an amended leave application, but they just ignored his direction.
4. Almost four and half years later, both leave applications were listed for hearing before this Court on 19 September 2024. The mother appeared on behalf of herself and her son. As her son is a minor, this Court explained to the mother the requirements under Order 80 Rule 2(1) of the Rules of the High Court, suggested her to apply for legal aid and for that purpose adjourned the hearing.
5. However, neither the mother nor the son appeared at the adjourned hearing on 6 January 2025. The notices of hearing had been sent to them by post to the same address as before. They have not been returned through the course of mail. The mother was reminded that she should inform the Court as soon as possible if she should change her address. There is nothing to suggest that they had not received the notices of hearing or had moved. The mother had been advised of the need to seek legal representation for the son whom she represented and had been given an adjournment to enable her to do so. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the absence of legal representation for the son a mere irregularity and that the leave applications may be justly determined without the applicants being legally represented. This Court proceeded with the determination and ordered that both leave applications be heard together. Hereafter, the mother and son are referred to as the “1st Applicant” and the “2nd Applicant” respectively.
Background
6. The 1st and 2nd Applicants are nationals of the Philippines, now aged 39 and 6 respectively. The 1st Applicant last entered Hong Kong on 31 August 2017 to work as a foreign domestic helper. She overstayed after employment contract was terminated. She surrendered to the Immigration Department on 25 May 2018 and made a non-refoulement claim by way of a written representation dated 6 August 2018. She made a similar claim on behalf of her son on 28 January 2019.
7. In due course, their refoulement claims were separately assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. Their claims were separately dismissed by the Director’s Notice (1) and Notice (2). Their appeals against the Notices were also separately dismissed by the Board’s Decision (1) and Decision (2). They now seek leave to review those decisions of the Board.
The Applicants’ case
8. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms (the “NCFs”) prepared by them with legal assistance and the record of their screening interview in the presence of their lawyer. In gist, the Applicants claims that if returned to the Philippines, they will be harmed or killed by the 1st Applicant’s ex-boyfriend (“Richard”); that the 2nd Applicant would suffer serious discrimination from the 1st Applicant’s extended family and the Catholic community for being a half-Muslim; and by the New People’s Army (“NPA”).
9. The 1st Applicant was born in Dangcagan, Bukidnon, Mindanao, the Philippines. She is single. She received 10 years of education and had over 3 years’ experience as a foreign domestic helper in Vietnam and Hong Kong. She cohabited with Richard from 2009 to 2014 and gave birth to a daughter. Their daughter lived with the 1st Applicant’s grandmother in Mindanao but was maintained by Richard. Richard worked for a syndicate involved in illegal gambling and the sale of drugs in Mindanao. He lost his temper easily when he got drunk. He used to slap the 1st Applicant’s face three times a month. The 1st Applicant suffered bruises which usually took a week to heal. Out of her fear of Richard, she never sought medical treatment or reported the assaults to the police.
10. She went to work in Vietnam in 2013 as a foreign domestic helper but her contract of employment was terminated after six months and she returned to the Philippines. In 2014, she went to work as a foreign domestic helper in Hong Kong. Since then, her relationship with Richard began to deteriorate. She heard from her neighbours in the Philippines that he had been dating other women. When she confronted him, he denied and they continued to engage in arguments. As a revenge, she decided to date other men and started a relationship with a Bangladeshi non-refoulement claimant (“Rasel”) in 2017 and gave birth to their son, the 2nd Applicant, in 2018. She did not tell anyone in the Philippines about her pregnancy. However, Richard came to know about it after seeing her pregnant photographs which she posted online. Then, he threatened her through text messages.
11. The 1st Applicant fears that Richard would harm her or the 2nd Applicant because of her relationship with Rasel. She worries that he would cease supporting their daughter if she left him. However, she conceded during the screening interview that Richard would not do that to his daughter and at the time of the appeal was still paying her maintenance. The 1st Applicant also worries that the 2nd Applicant being a half-Catholic and half-Muslim would attract serious discrimination from her extended family and other Filipinos, and that the Philippine government would not offer any support to the religious minority in terms of provision of care for their basic needs or protection from discrimination or ill-treatment.
12. She does not believe that the Philippines authorities or police could protect them, as they are corrupt. She does not believe internal relocation viable because Richard could locate them throughout the Philippines through the syndicate’s powerful network.
The finding of the Board in Decision (1)
13. The 1st Applicant testified before the Board. The Board found her evidence in relation to Richard’s knowledge of her pregnancy and her relationship with Rasel, the threats Richard made against her and her evidence about Richard’s alleged links to criminal activities was vague, evasive and at times untruthful. In the NCF, the 1st Applicant said that Richard knew nothing about her pregnancy and relationship with Rasel. But in the Notice of Appeal, she said Richard knew about Rasel but not the 2nd Applicant. At the hearing, she said maybe Richard did know. In the end, she conceded that she did not really know how much he knew about Rasel and the 2nd Applicant. The Board found that if Richard had issued threats around the time of the Notice of Appeal, the 1st Applicant would have been able to confirm this unequivocally at the hearing. It accepted the 1st Applicant’s evidence that she had left Richard approximately a year before she left the Philippines to come to work in Hong Kong in 2014 and that Richard had told her that he did not want to see her face again and did not care about her. The Board found Richard was not concerned about the 1st Applicant’s current marital status or religion.
14. The 1st Applicant claimed that she could not provide any of the threatening messages from Richard because she had lost her phone. This explanation was given after she had confirmed at the start of the hearing that she had not changed her phones recently. She explained that she misunderstood the Board’s question and that she had lost her phone before she confirmed that she had not changed her phone recently. Then, she switched to a different line of explanation, ie that she forgot her Facebook password frequently and switched to a new account every time she was unable to log-in. The Board found her incredible. It rejected her explanation as non-persuasive because it was easier to recover or change her password than setting up a new account. It also rejected her evidence that Richard worked for a criminal syndicate. It found Richard was an itinerant construction worker not linked to any criminal syndicate and had not issued threats against the Applicants. Not only that, it also found Richard was concerned about their daughter, visited her regularly and paid her maintenance. The Board therefore rejected the Applicant’s claim of fear of proscribed harm from Richard.
15. The Board accepted that the 1st Applicant had genuinely converted to Islam faith because she considered Muslim to be more committed and not because she wanted to convince Rasel to marry her. It found her relationship with Rasel was not tit-for tat “revenge” or just “an affair” but a stable relationship which may lead to marriage, unlike that of hers with Richard (The Board retracted from this finding in Decision (2)).
16. The 1st Applicant remained in regular contact with her extended family. She said that her whole family knew about Rasel and the 2nd Applicant, and none of her relatives had reacted badly when she told them. She also made no mention about being disowned by them because of Rasel or for having a child with him. But she changed her evidence when she testified for the 2nd Applicant in his appeal against Notice (2).
17. When discussing about her conversion to Muslim faith, the 1st Applicant never expressed any fear of harm at the hands of her family, Richard, her community or anybody else. She was quite at ease talking about the conversion. For the above reasons, based on the gaps, inconsistencies and other problems with her evidence, the Board rejected the 1st Applicant’s evidence about discrimination, individually and cumulatively in their entirety.
18. The Board therefore found that there could not possibly be any “substantial grounds” for finding that the 1st Applicant faced any of the proscribed forms of harm or discrimination from Richard, her extended family and the community should she return to the Philippines. Applying the law applicable to the non-refoulement protection to the above facts, the Board found the 1st Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice (1).
The finding of the Board in Decision (2)
19. The 2nd Applicant’s case is also founded on the same facts as the 1st Applicant’s. In gist, his claim is that if returned to the Philippines, he will be at risk of harm from Richard and serious discrimination from the 1st Applicant’s extended family and the community for being a half Muslim. He may not be able to receive proper schooling or even medical care. In his Notice of Appeal, the 2nd Applicant raised a new claim of risk of harm from the NPA, a rebel communist guerilla group in the Philippines. This claim is wholly lacking in particulars.
20. Though at the time of hearing the 1st Applicant still could not produce a conversion certificate, the Board accepted that she had been converted, but found that she had not shown herself to be particularly devoted as she practically knew virtually nothing about Islam, and there was no evidence to support that she was a practising Muslim. As the 2nd Applicant was born to a Muslim father, the Board also accepted he is a Muslim by birth.
21. The Board noted that when the 2nd Applicant’s NCF was lodged, the 1st Applicant had already converted to Islam. Thus, both of the 2nd Applicant’s parents are Muslim. Hence, the Board found it difficult to understand why the 1st Applicant wrote on the 2nd Applicant’s NCF that he is a Catholic. This caused the Board to doubt if the 1st Applicant was serious when claiming her immediate family are Muslims.
22. Contrary to its finding in Decision (1), the Board found that the 1st Applicant converted as a way to show Rasel that she wanted to be with him and that he should marry her. However, Rasel still has not expressed a desire to marry her. The 1st Applicant and Rasel have not had any conversations about their future as a family. Rasel also did not attend the hearing of the 1st Applicant’s or the 2nd Applicant’s appeals. The Board questioned his commitment to be with the Applicants. It found the sole reason for the 1st Applicant’s conversion had evaporated.
23. For these reasons, the Board found that although the 2nd Applicant is technically a Muslim because he was born to a Muslim father, he would be raised as a Catholic on return to the Philippines. This is because the 1st Applicant would not pursue her interest in Islam and because everyone else in her family and community are Catholics. Also, the 2nd Applicant’s father’s religion would be irrelevant to the people in the Philippines, as he would not be travelling to the Philippines. Thus, the Board found neither Applicant would be imputed with being Muslims.
24. On the evidence, the Board found that Richard had no motive to harm either Applicants and that he is just an ordinary construction worker who had no connection to any criminal syndicate. On the contrary, it found that both the 1st Applicant’s extended family and Richard knew that the 1st Applicant was in a relationship with Rasel, and that the 2nd Applicant would be accepted by the 1st Applicant’s extended family and the community and would not suffer discrimination or be deprived of education or medical care.
25. Previously, in her own appeal hearing before the Board the 1st Applicant said she was in regular contact with her extended family and expressed no fear of harm at the hands of her family, Richard, her community or anybody else. However, she departed from that evidence when testifying for the 2nd Applicant before the Board. She hastened to say that she was no longer in touch with her extended family and insisted that her relatives did not know much about Bangladesh and hence Rasel’s religion would not be obvious to them. She gave confusing evidence about how she had lost contact with her extended family since May 2019 and eventually she said she even lost her last contact with her extended family through her aunt when she lost her phone in which her aunt’s telephone number was kept.
26. The Board also noted that the 1st Applicant had falsely claimed on the advice of a friend that she had a daughter who died in a car accident. She said she knew she was lying and explained that was because she was confused. The Board found she is not a witness of truth and has fabricated some and exaggerated other of the 2nd Applicant’s claim.
27. The 1st Applicant was unable to give any particulars about the risk of harm from the NPA. The Board found the NPA would not have any interest to harm either of the Applicants in any event.
28. In the circumstances, the Board found that there could not possibly be any “substantial grounds” for finding that the 2nd Applicant would face any real risk of proscribed harm and discrimination from Richard, the 1st Applicant’s extended family, the community or the NPA, if refouled to the Philippines. Applying the law applicable to the non-refoulement protection to the above facts, the Board found that the 2nd Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice (2).
Legal principles applicable to judicial review
29. 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
30. The Applicants did not advance any grounds for review in their Forms 86. In her supporting affirmation, the 1st Applicant reiterated that she did not agree with the Board’s Decisions. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that the Applicants would face real harm or real risk of harm if returned to the Philippines. 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
31. Having rigorously examined the Decisions, 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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding.
32. The Board found the 1st Applicant, who testified on behalf of both Applicants, partly credible and partly incredible. She departed from the evidence she gave in her own appeal before the Board when she gave evidence on behalf of the 2nd Applicant in his appeal. It found she fabricated some evidence and exaggerated on some other evidence. It rejected her evidence that Richard was associated with a criminal syndicate and that he had threatened to harm her or the 2nd Applicant. It found Richard was not concerned about the 1st Applicant’s current marital status or religion, had no motive to harm the Applicants and had not actually threatened to harm either of them. In fact, Richard and the 1st Applicant had lost contact with one another.
33. The Board preferred the 1st Applicant’s evidence in her own appeal to her evidence in the 2nd Applicant’s appeal. It found that her whole family knew about Rasel and the 2nd Applicant, and none of her relatives had reacted badly when she mentioned them or had disowned her because of them. The 1st Applicant could give no particulars about the risk of harm from the NPA. She admitted she had never had any problems with the NPA while she was in the Philippines, but insisted that she was afraid of them. The Board was not satisfied that NPA has any interest harming the Applicants.
34. Though the 2nd Applicant’s claim arose out of the same set of facts as the 1st Applicant’s, he has raised separate claims distinct from that of the 1st Applicant’s, namely the risk of harm from Richard because he was born by the same person with whom Richard had a former relationship but with a different partner; the risk of discrimination from his mother’s extended family and the community for being a half Muslim; and the risk of harm from the NPA. The Board had considered these claims separately from that facing the 1st Applicant. It did not seem to have taken into consideration the risk level which the 2nd Applicant, being a minor, could tolerate; but that is not necessary as the Board found on the evidence that the risks of harm do not exist.
35. It was on the above basis that the Board found the Applicants had failed to establish the factual basis to support their claims for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their respective fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
36. For the above reasons, the Applicant’s leave application in HCAL 1936/2019 and the 1st and 2nd Applicant’s leave application in HCAL 498/2020 as amended are refused.
Dated the 28th day of January 2025.
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( Seline Sze )
for Registrar, High Court
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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 Applicants
on 28/01/2025
Manto Jacqueline Medado
Hossain Jamil
Applicants’ ref. no:
Nil. |
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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 28/01/2025
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14846/18/12/203/F967
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4278/18 (formerly RBCZ/10734/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[3] 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”)
[4] 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
[5] [2018] HKCA 524 at [14(1)]
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