DALUYEN JOAUNIE DELIGEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1951/2019

[2024] HKCFI 2825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1951 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 Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Daluyen Joaunie Deligen (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 23 March 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 2 June 1979 in Sagada, Mountain Province, the Philippines. She was single and has a daughter.

3.  She holds a Bachelor’s degree in Criminology and worked as an English tutor in 2002. From 2002 to 2013, she operated her fruit selling business at Baguio City Market (“Market”).

The Claim

4.  The Applicant relied on the following facts for her claim. On 10 January 2013, at around 6:30 pm when most of the stores in the Market had closed, she saw a man being stabbed by a coolie working in the Market (“H”) (“Incident”). The Applicant screamed and H went after her with a knife. H threatened her to stay silent or she would be the next. H was stopped by other passersby and was later arrested by the police.

5.  The Applicant told the police that she saw what happened during the Incident. She was however not asked to provide further assistance to the police or to provide a statement.

6.  The Applicant avoided going to the Market for about a week. When she went back to the Market again, she was threatened by H who told her to keep her mouth shut or both she and her child would be killed. On the next day, out of a sudden, H grabbed her from behind and warned her to stay silent. She struggled against him and escaped.

7.  After discussing with her family about H’s actions, the Applicant decided to heed their advice and come to Hong Kong to seek protection. After arriving in Hong Kong, her sister told her that H came to her home from time to time to look for her. His last visit was on 18 November 2017. He had also asked her sister for her whereabouts.

8.  The Applicant said that her sister told her that H had been involved in another wounding case and was wanted by the police. As for the investigation of the Incident, the Applicant did not believe that there was much progress because H was still at large.

9.  The Applicant claimed that she would be harmed or killed by H if she were returned to the Philippines.

Procedural history

10.  The Applicant arrived in Hong Kong on 9 May 2013 as a visitor and was permitted to remain until 23 May 2013. She overstayed and surrendered to the Immigration Department on 27 April 2015.

11.  By a written representation of 20 July 2015, the Applicant lodged the Claim.

12.  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 (“torture risk”);

(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”) (“BOR 2 risk”);

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

13.  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.

14.  On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

The DOI Decision

15.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that H intended to harm the Applicant. This was because H had the opportunities to harm her in the past but refrained from so doing. H also never harmed her family in the Philippines in his numerous visits. Lastly, H was himself a wanted man for another case and it was mere speculation on the Applicant’s part that H would want to or be able to harm her upon her return.

16.  The affairs between the Applicant and H were private in nature and had nothing to do with the Filipino government. There were no substantial grounds for believing that the state was involved or would provide any form of encouragement to H in threatening the Applicant.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some inefficiency or corruption problems within the Filipino police but there were objective indications in the COI that the Filipino government took steps to improve the police force. The Director found that the Filipino government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant if necessary.

18.  The Director further found that internal relocation would be viable. There were no objective evidences that H had the ability or resources to locate the Applicant throughout the country if she returned to the Philippines. If the Applicant moved to Quezon City or Manila, H would have great difficulty in locating her. 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.

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

The Board’s Decision

20.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board noted that there were some inconsistencies in her case but was prepared to give her the benefit of doubt. The Board largely proceeded on the basis that the Applicant’s case about the threats by H were true. It accepted that she was depressed by H’s threatening actions but found that H did not pose any serious risk of harm to her and that she was not in need of non-refoulement protection.

21.  The Board noted that H could have seriously harmed the Applicant immediately after the Incident but refrained from so doing. He was carrying a knife at that time and could have caused her serious harm if he wanted to. Instead, she remained unharmed in each of her encounters with H. H also never hurt her sister or her daughter in the Philippines.

22.  Further, H was apparently released by the police after the Incident because the victim did not file a complaint against him and H was not charged by the police for the Incident. There was thus no reason for H to still go after the Applicant when she returned to the Philippines.

23.  The Board noted that the Applicant was familiar with criminal procedure because of her degree in criminology (§47 of the Board’s Decision). She told the Board that she would file a complaint with the Filipino police if H should threaten her after her return. She also said that she would relocate to the Pangasinan province upon her return, which was some five hours away from Baguio City by vehicle. In the circumstances, the Board held that the risk of harm to her was low.

24.  On the issue of persecution risk, the Board noted that her dispute with H originated from a private matter and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion. On the issue of torture risk, the Board noted that H was clearly a non-state actor. The Board held that the Applicant failed to establish that she was at risk of suffering from any of the proscribed risks of harm upon her return.

25.  The Board was not persuaded that there were substantial grounds for believing that the Applicant would face a genuine and substantial risk of being subjected to severe ill-treatment under BOR 3 risk or that her right to life under BOR 2 would be violated, if she returned to the Philippines.

26.  The Board further found that state protection would be available to the Applicant upon her return to the Philippines. Despite some indications of corruption and inefficiency in the Filipino government, there had been a movement to crack down on corruption since late 2016. All Filipinos were subject to the same imperfect system of policing and general governance and she could expect reasonable state protection upon her return.

27.  As for internal relocation, the Board found that the Applicant was not targeted by the Filipino government and there was no evidence to suggest that H had the resources to locate her in every part of the Philippines. The Applicant's assertion that H could have traced her wherever she lived in the Philippines was not substantiated by evidence. The Board found that it would not be unduly harsh for her to relocate to the Pangasinan province, Quezon City or Manila.

28.  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

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

30.  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”.

31.  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

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

33.  In the Supporting Affidavit, the Applicant only stated that she was not satisfied with the Board’s Decision in rejecting the Claim. She exhibited a copy of the Board’s Decision without other supporting documents.

34.  The Applicant attended the court hearing on 19 September 2024 and confirmed to the court that she did not find any errors of law, procedural unfairness or irrationality in the Board’s Decision and she had nothing further to tell the court.

35.  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.

36.  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.

37.  The Board found that the Applicant had failed to show a real and substantial risk that were she returned to the Philippines, she would face a serious violation of her human rights (including right to life) and serious or intolerable harm. The Board also found that state protection and internal relocation would be available to the Applicant, if necessary.

38.  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.

Conclusion

39.  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