RANACO ANA MARIE RICO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1838/2019

[2024] HKCFI 2571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1838 of 2019

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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 Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Ranaco Ana Marie Rico (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 31 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Filipino.  She was born on 9 September 1982 in Metro Manila, the Philippines. 

3.  She completed Grade 10 and studied micro computer technology in the Philippines Science and Technology Centre in March 2001.  She worked as a cashier, cashier visual inspector, data analyst and bank coordinator.

The Claim

4.  The Applicant relied on the following facts for her claim.  She started living with a man known as R in 2003.  They had a daughter in 2004 and a son in 2011.  R became abusive towards her in 2004 when she was pregnant.  He beat her with bare hands and threatened to kill her if she left him.  She suffered from bruises and abrasion over her body.  He attacked her about four times a year.

5.  To get away from R, she traveled to Kuwait in April 2010 to seek employment in the Middle East.  She could not adapt to life in the Middle East and returned to the Philippines in October 2010.

6.  After the Applicant’s return, R continued to attack her and hurl verbal insults at her.  She sometimes suffered bruises from his attacks but she did not seek any medical treatment.  She did not file any police report against R because she did not believe the police would investigate domestic violence cases.

7.  In about late 2013 or early 2014, the Applicant decided to leave her home and relocate to another city.  She stayed with her grandparents at a village in Naocondiot Placer Masbate, which was some 400 km away from her home.  She stayed there for a few months before coming to Hong Kong to seek employment on 13 June 2014.

8.  The Applicant claimed that she would be harmed or ill-treated by R if she were returned to the Philippines.

Procedural history

9.  The Applicant arrived in Hong Kong as a visitor on 13 June 2014.  She made two visits between Hong Kong and Macau.  Her last travel to Macau was on 4 July 2014 and she came back to Hong Kong on 22 December 2014.  She was permitted to remain as a visitor until 25 December 2014.  She overstayed and surrendered to the Immigration Department on 26 February 2016

10.  By a written representation of 3 February 2017, the Applicant lodged the Claim.

11.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

12.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

13.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of a decision purportedly made on 12 November 2018, which was not the date when the DOI Decision or the Board’s Decision was made.  The date 12 November 2018 was the date of the Applicant’s notice of appeal for the Appeal.  The Applicant also filed her supporting affidavit on 2 July 2019 (“Supporting Affidavit”).  In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

The DOI Decision

14.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that R intended to harm the Applicant. 

15.  The Director noted that the low intensity and low frequency of past ill-treatment from R was indicative of a small future risk of harm upon the Applicant’s return to the Philippines. 

16.  Further, the alleged injuries she suffered from R were not serious.  The Director did not accept that the ill-treatment, whether physical or mental, inflicted upon the Applicant by R attained a minimum level of severity.

17.  The Director further noted that, according to the Applicant’s evidence, she went back to stay with R after coming back from Kuwait in 2010.  She then had another child with R.  Up until 2013, she did not see the need to avoid R. There was no indication that R had an intention to kill the Applicant as imminent and serious as claimed.

18.  The Director found that the overall conduct of the Applicant after her arrival in Hong Kong to be inconsistent with a person genuinely in fears of threats of being harmed or killed and that the alleged risk from R was not as threatening as she claimed.  She did not seek protection immediately after coming to Hong Kong in June 2014 but had instead traveled to Macau twice and waited over 2 years before making her claim in 2017. 

19.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Philippine police might be hesitant to investigate into domestic violence complaints but there were objective indications in the COI that the Philippine government took steps to improve the police force.  The Director found that the Philippine government was able and willing to protect the rights of its citizens.  The Applicant may also be able to seek assistance from centers operated by the government and various NGOs.

20.  The Director found that internal relocation would be viable.  R was not a government official in the Philippines and had no connections with any political groups or organizations.  It was unlikely that he would have such resources to locate the Applicant all over the Philippines.

21.  If the Applicant moved to Manila or Quezon City, R would have great difficulty in locating her.  In the past, she had no difficulty with leaving the Philippines.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

22.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

23.  At the hearing before the Board, the Board asked the Applicant to clarify her past and current relationship with R and the reasons for coming to Hong Kong and visiting Macau.

24.  In §§30-52 of the Board’s Decision, the Board discussed the evidence given by the Applicant at different stages of the non-refoulement proceedings including oral evidence given at the hearing before the Board.  The Board found that multiple and cumulatively significant aspects of her evidence casted doubt on her claims to face a real chance of torture, serious harm or death from R in the Philippines in the reasonably foreseeable future.

25.  The Board accepted that she suffered domestic violence from R but that stopped after she left him in mid-2014. 

26.  The Board doubted whether R had the intention or means to locate the Applicant upon her return.  It noted that she left R to live with her grandparents for five months before coming to Hong Kong and that she did not encounter R during this period.  It was also her own evidence that R did not visit their children after 2015, despite the fact that he knew their address. Further, according to the Applicant, R had only asked their children to provide her phone number on one occasion.   R did not manage to get her number and he had had no contact with her for many years.

27.  On the evidence before the Board, the Board did not accept that the Applicant faced a real chance of harm of any kind from R should she return to the Philippines. 

28.  The Board further found that even if it was wrong in the above finding and that R did indeed pose a real risk of harm to the Applicant, she could avoid R by relocating to Metro Manila.  With her age, education, working experience and potential financial support from her brother in Hong Kong, it would not be unduly harsh to expect her to relocate.

29.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.  

Legal principles applicable to judicial review

30.  In a judicial review, the court does not step into the shoes of the decision makers.

31.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

32.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

33.  In the Form 86, the Applicant did not specify any grounds for her intended judicial review.

34.  In the Supporting Affidavit, the Applicant only stated that:

“even though the judgment on my claims was a rejection; I would still like to submit a petition. For my protection and to still allow me to stay in Hong Kong because of my fear of being harm or killed if i go back home in the Philippines.”

35.  The Applicant exhibited a copy of the Board’s Decision to the Supporting Affidavit without other supporting documents.

36.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

37.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 very high standards of fairness. 

38.  The Board did not accept that the Applicant would face a real chance of harm of any type from R in the Philippines should she return there.  In the alternative, should a real chance of harm arise, the Board found that the Applicant could safely relocate within Metro Manila without undue hardship.

39.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.

40.  At the court hearing of 5 September 2024, the Applicant said that she disagreed to the finding of the Board on viability of internal relocation.  She said that she would not be safe in any places in the Philippines and R could find her because despite the Philippines being a large country, it was easy to travel by boat in the Philippines to different places.

41.  The Applicant further informed the court that she had relocated her children in the Philippines for about one year and R had not contacted her children since then.  However, she still worried that R might find them in future. 

42.  The Applicant’s challenge against the Board’s finding on viability of internal relocation is without merits.  The fact that R was unable to locate the Applicant’s children after their relocation for a year serves to confirm the finding of the Board on viability of internal relocation to tackle the Applicant’s feared harm from R.  In any event, challenge to findings of fact of the Board is not permissible in a judicial review unless the findings concerned have been tainted by errors of law, procedural unfairness or irrationality, which does not occur in this case.

Conclusion

43.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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