BELLEZA NOEL MANABAT AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2535/2019

[2025] HKCFI 6205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2535 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the 1st and 2nd Applicants in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 30 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 3 July 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 October 2017 (the “Notice”), refusing their application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicants are nationals of the Republic of the Philippines. Their personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  Briefly, the 1^st Applicant is the father of the 2^nd Applicant.  He first worked in Hong Kong as a foreign domestic worker in 1997, overstayed and was repatriated in 4 June 2000.  He came and worked intermittently from 2006 to 2008 and from 2010 to 2012.  Then he last came to Hong Kong as a visitor on 23 January 2017 and overstayed since 6 February 2017.  The 2^nd Applicant was born in the Philippines in 2000.  She had come on several occasions as a visitor since 2004.  She last came here on 11 April 2017 and overstayed.  In gist, the Applicants claim that if returned to the Philippines, they will be harmed or killed by Limpos, a retired army officer and drug dealer, due to a land dispute between him and the 1^st Applicant.  The land in question belonged to the 1^st Applicant’s mother.  Believing that his mother would naturally pass the land to him, the 1^st Applicant sold it to Limpos in November 2015 without prior discussion with his parents.  He received the full purchase price for the land and Limpos started building on the land in 2016.  However, the 1^st Applicant’s mother refused to give the title deed of the land to the 1^st Applicant and sold the land to someone else in March 2019.  The 1^st Applicant was unable to return the purchase price to Limpos and Limpos threatened to kill him if he was unable to handover the title deed.  He also threatened the 2^nd Applicant with a gun when she could not disclose information about the 1^st Applicant.

The Board’s finding

3.  The Board did not seem to accept the 1^st Applicant’s claim that his mother had sold the land to another.  It said the claim “seems incredible”.  It also said the copy of Deed of Absolute Sale of the Land produced by the 1^st Applicant as evidence of the sale of the land by his mother was so blurred and unreadable that it could not tell whether it was related to the land in question.  Nevertheless, the Board proceeded to assess the Applicants’ claim on the basis of the factual case as they asserted.  It found the Applicants’ claim is purely a case of land dispute between the 1^st Applicant and Limpos and there is no basis for the Applicants’ fear. 

4.  In respect of Torture Risk ground, it found the treatment the Applicants received did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and have hence failed to establish that there are substantial grounds for believing that they would be liable to be subjected to torture if refouled.  These findings are based on the 1^st Applicant’s evidence that apart from the single occasion when Limpos uttered the threat to kill, if the 1^st Applicant could not surrender the title deed, Limpos had done nothing at all thereafter indicating that he would harm or kill the 1^st Applicant.  It also considered the threat was made at the spur of the moment suggesting there was no intention on the part of Limpos to execute the threat.  Similarly, apart from pointing a gun at the 2^nd Applicant on one single occasion when she failed to provide him with information about the 1^st Applicant, Limpos never uttered any threat against her at all.  The Board also dismissed the 1^st Applicant’s claim of hearing a gun shot fired by Limpos and his brother’s claim about seeing suspected gangsters driving suspiciously around his brother’s residence as speculative. 

5.  In respect of BOR 3 Risk ground, it found for the same reason that the Applicants would not be subjected to the kind of ill-treatment contemplated in BOR 3, ie ill-treatment attaining a minimum level of severity and genuine and substantial risk of being subjected to such ill-treatment. 

6.  As the Applicants’ claim is not concerned with a death sentence having been passed on them or that they will be at risk of genocide, the Board found BOR 2 Risk ground was not engaged.

7.  As for Persecution Risk ground, the Board found the feared ill-treatment which the Applicants would likely receive from Limpos would not be on account of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

8.  The Board found there was no evidence to suggest that Limpos, albeit he was a retired army officer, is in any way related to the authorities and is resourceful enough to locate the Applicants had they relocated to another place in the Philippines.  Given their age, education and working experience, the Board found it would not be unduly harsh to expect them to relocate outside their home area to avoid the risk of harm.

9.  Applying the law applicable to non-refoulement protection, the Board found the Applicants are not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed their appeal.

Grounds for judicial review

10.  At the hearing, after the legal principles applicable to judicial review had been explained to them, the Applicants confirmed that they had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, they advanced the following grounds in their Form 86:

(1)  the Board reached the Decision wrongly;

(2)  the Director failed to appreciate the importance of state acquiescence;

(3)  the Board placed too much reliance on country of origin information (“COI”) but failed to take their personal background and experience into account;

(4)  the Director failed to give enough weight to the COI they submitted;

(5)  the Director failed to take such argument into account;

(6)  the Director’s unfair attitude is enough to render the decision void;

(7)  the Director failed to attain the high standard of fairness;

(8)  the Board acted unfairly by requiring them to respond to questions that they were not in a position to offer any response;

(9)  the Board’s Decision is irrational; and

(10)  they should be granted leave to apply for judicial review.

11.  The 1^st Applicant confirmed that the grounds were prepared by their lawyer and had been explained to them and understood by them.  Some of the grounds were directed at the Director.  As the Director’s decision in his Notice had been superseded by the Board’s Decision and is not reviewable, the Court assumed for their benefit that all the grounds are directed at the Board.

12.  The 1^st Applicant’s submission under Ground (1) is that the Decision is unfair to the 2^nd Applicant and denied both of them a better life.  He said there is no future for the 2^nd Applicant going back to the Philippines.  An administrative decision is only reviewable for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].  The Applicants’ desire for a better life in Hong Kong is not a ground for non-refoulement protection under the USM.

13.  The Applicant’s complaint under Ground (2) is about the Board’s failure to consider the importance of state acquiescence.  However, they adduced no evidence and advanced no argument on state acquiescence.   The 1^st Applicant’s submission is that the Immigration Department refused their application simply because it wanted to send them back to the Philippines.  Their complaint about the propriety of the Director’s decision or the Board’s Decision is just a bald assertion and had no bearing to the complaint under this ground.  The Court will re-visit this complaint in its overall scrutiny of the Board’s Decision.

14.  Under Grounds (3) and (4), the 1^st Applicant argues that the Board turned a blind eye to the reality that the policemen in the Philippines are the “bad guys” and it is unbelievable that the situation in the Philippines is that bad.  He said the police would not be able to protect them.  The Board did not turn a blind eye to the real situation in the Philippines.  It noted in paragraph 56 of its Decision that there is support of the 1^st Applicant’s claim based on the COI that the police were corrupt and inefficient.  Though there is support in the COI that reforms have been on-going and the government has taken practical steps to improve police effectiveness and to monitor their conduct, in the end, the Board did not make any finding that police or state protection is available.  As for his worry that Limpos could find him out, the Board found at paragraph 67 that there is no evidence to suggest Limpos is in any way related to the authorities and is resourceful enough to locate him throughout the entire country of over 300,000 square kilometres with a population of more than 100 million.  That is a finding of fact, which accords with common sense.  The Applicants’ fear is just their own speculation.

15.  Under Ground (5), the 1^st Applicant argues that the Board failed to take into account arguments about the standard of law enforcement in the Philippines and the future of the 2^nd Applicant.  He emphasised that there is no future for the 2^nd Applicant in the Philippines.  As mentioned in the preceding paragraph, the Board has not turned a blind eye to the corruption and inefficiency in the Philippine police force.  It did not take into account availability of police protection in its Decision.  As for his argument about the future of the 2^nd Applicant, the 1^st Applicant’s sentiment as a father is well understood.  But, as was mentioned in Paragraph 12, the claimant’s personal aspiration is not a ground to entitle her to international protection.

16.  As for Ground (6), the 1^st Applicant was unable to provide any particulars of the unfair attitude of the Director or the Board other than the Board’s dismissal of their appeal against the Director’s Notice.  He did not advance any argument that the dismissal was the result of an error of law, or procedural unfairness or irrationality in the Decision. Indeed, he confirmed he had no complaint about these issues.  The Court will re-visit these issues in its overall scrutiny of the Board’s Decision.

17.  On Ground (7), the 1^st Applicant submits that by dismissing his appeal against the Director’s Notice, the Board was in breach of the high standard of fairness.  This is in effect a challenge of the Board’s finding of fact, which is not permissible.  The Court will bear this complaint in mind in its overall scrutiny of the Decision.

18.  As for Ground (8), the 1^st Applicant could not recall what were the questions which the Board had unreasonably asked of him.  He was unable to provide particulars.  This Court is unable to assess this ground of review.

19.  Under Ground (9), the 1^st Applicant argues that the Board’s Decision is irrational in dismissing their appeal.  He gave no particulars of the irrationality.  The 2^nd Applicant added that the Decision is irrational in that her life would be in danger if she is refouled.  This is a direct challenge of the Board’s finding of fact.  The Court will re-visit this issues in its overall scrutiny of the Board’s Decision

20.  Ground (10) is just a prayer for the relief sought and not a ground of review.

21.  In essence, the Applicants are disputing the Board’s finding of fact which is impermissible save for errors of law, procedural unfairness or irrationality in the Decision. None of these reasons constitutes any arguable grounds of review.  The Court will turn to these issues in the next subsection.

Overall scrutiny

22.  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 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 carefully and tested it against common sense, inherent probability and the country of origin information.  The Board had doubts about the credibility of their case and was not satisfied that the Deed of Absolute Sale of the land was referable to the land in question.  Nevertheless, it did not dismiss their appeal on that basis.  Instead, it assessed their claim on the basis of the factual case as they asserted.  It made the further finding of fact as summarized in paragraphs 3 to 9 above.  Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicants had failed to establish the factual basis to support their claim for 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 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

23.  For the above reasons, the Applicants’ leave application 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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002535_2019_files/the_Board's_Decision.pdf

[2] [2018] HKCA 524 at [14(1)]