HCAL 305/2019
[2022] HKCFI 2038
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 305 of 2019
BETWEEN
Del Monte Ma Mercedes Dolorso
1st Applicant
Del Monte Maria Marjith Stefanie Wijemanna
2nd Applicant
and
Torture Claims Appeal Board /
Putative Respondent
and
Director of Immigration
Putative
Interested Party
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 :
1. Extension of time to apply for leave to apply for Judicial Review be refused; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 filed on 1 February 2019 for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 October 2018 (the “2nd Decision”). Her application is almost one month late and is deemed to include an application for extension of time.
2. In AW and Director of Immigration [1] , the Court of Appeal held that the following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time: (1) length of delay; (2) explanation for the delay; (3) merit of the substantive application; (4) prejudice to the respondent if extension of time was granted; and (v) whether the application raises any question of general public importance and whether those questions are likely to have to be resolved by the courts in any event. Though the delay was long, having regard to the particular facts of this case and the fact that the 2nd Applicant is a minor, this Court was prepared to give more weight to merit of the substantive application. If there is merit, this Court was prepared to condone the delay.
Background
3. The 1st Applicant is a national of the Philippines, now aged 53. She entered Hong Kong in November 1999 to work as a foreign domestic helper. She did not leave Hong Kong after her contract was prematurely terminated on 16 June 2003 and became an over-stayer. She was arrested on 26 January 2007. On 7 October 2008, she gave birth to her daughter, the 2nd Applicant.
4. The Applicants had previously made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) which was rejected by an immigration officer on 4 July 2011. They lodged a petition to the Chief Executive against the decision of the immigration officer. Their petition was refused by the then Petition Team.
5. On around 16 August 2013, the 1st Applicant raised a non-refoulement claim by written signification on her and her daughter’s behalf. Their non-refoulement claim was assessed on all then applicable grounds under the Unified Screening Mechanism (“USM”) other than the risk of torture under Part VIIC of the Immigration Ordinance which had been conclusively decided (that was her Torture Claim), namely, BOR 3 Risk[2] and Persecution Risk[3] .
6. By a Notice of Decision dated 12 November 2014 (the “1st Notice”) the Director rejected their claim under the BOR 3 Risk and Persecution Risk grounds. They appealed but their appeal was dismissed by the decision of the Board dated 10 July 2015 (the “1st Decision”). That decision became final.
7. By a letter dated 4 January 2017, they were invited by the immigration officer to submit additional facts, if any, which they considered relevant to the non-refoulement claim on all applicable grounds, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, including the right to life under Article 2[4] (“BOR 2 Risk”) in case they have omitted them due to misunderstanding. In response, they submitted a letter dated 24 January 2017 advancing two additional facts (the “Letter”). Firstly, they claimed that the 2nd Applicant could only speak a little English and understand Chinese but could not speak any of the Philippine languages. Secondly, they claimed there had been many violence and killing incidents in the Philippines since July 2016. After due consideration, the immigration officer issued a Notice of Further Decision dated 25 January 2017 rejecting their claims under BOR 2 Risk ground (the “2nd Notice”).
8. The Applicants appealed the 2nd Notice. At the time, they were privately represented by Mr Tibbo instructed by Messrs Ho Tse Wai & Partners (“HTW”). The appeal was scheduled to be heard on 9 April 2018. Mr Tibbo, submitted a letter dated 6 February 2017 requesting that the Applicants’ claims be dealt together with that with that of the 2nd Applicant’s natural father who is a Sri Lankan asylum seeker (the “Father”). That request was refused by the Board as having been made without factual or legal basis in that:
(a) It had hitherto had been the case that the Applicants petitioned against the decision of the immigration officer;
(b) The 2nd Applicant had never been in the custody of her Father;
(c) The Father’s name is not registered in the birth certificate of the 2nd Applicant;
(d) No steps have been taken by the Father to prove his fatherhood to the 2nd Applicant;
(e) The 1st Applicant has taken no steps to make good the application for joint claim by proving the relationship between her Father and the 2nd Applicant;
(f) The 1st Applicant conceded that there was no plan to take the 2nd Applicant to Sri Lanka; and
(g) There is no evidence that the 2nd Applicant had any knowledge of the Sri Lankan dialect.
9. In rejecting the request, the Board held at paragraphs 11 and 12 of its Decision:
“11. I consider that apart from having nuisance value that joint claim is apparently a tactical step to put the Director of Immigration in a difficult position and frustrate the resolution of the Petitioners’ as well as [the natural father’s] non-refoulement claims.
12. That counsel should be reprimanded.”
10. At the hearing before the Board on 9 April 2018, the Applicants were legally represented by Ms Patricia Alva on the instruction of the Duty Lawyer Service instead of by Mr Tibbo and HTW. The Applicants advanced four grounds based on (a) the 2nd Applicant’s language problem; (b) the threats from the 1st Applicant’s uncle; (c) the threat from the 1st Applicant’s husband; and (d) the current political situation in the Philippines. Grounds (a) and (d) are the grounds as stated in the Letter which had been considered by the immigration officer. Grounds (b) and (c) are new grounds. Their appeal was dismissed by the Board’s 2nd Decision.
11. On 1 February 2019, the Applicants applied for leave to apply for judicial review of the 2nd Decision, but not against the 1st Decision. Thus, the subject matter of the Applicants’ intended judicial review is the Board’s 2nd Decision relating to their non-refoulement claim under BOR 2 Risk ground.
The Applicants’ case
12. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by 1st Applicant with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, the 1st Applicant claimed that she would be harmed by the New People’s Army (“NPA”) because she refused to join them. In addition, both Applicants claimed that they would be harmed or killed by the 1st Applicant’s separated husband for the 1st Applicant giving birth to the 2nd Applicant outside their wedlock.
13. The 1st Applicant was born and raised in Legaspi City of the Philippines. She married her husband in 1985. Her husband started beating her in 1986. On one of the assaults, he broke her leg. The 1st Applicant left him in 1995. She last saw him in 1999 when he visited her for the purpose of seeing their daughter. She had no contact with him since. Her husband visited Hong Kong in 2010 and met with some of her friends. She was told by her friend, Shirley, that when asked what he would do if he learnt that the 1st Applicant had a child with another man, his husband replied that he would kill the 1st Applicant.
14. The 1st Applicant has a paternal uncle who was a member of NPA, but she did not know his position in the NPA. In 1991, his uncle invited her to join NPA for the purpose of protecting her from her husband. She refused and left for Hong Kong in November 1999 to avoid her uncle. When she returned to the Philippines for a holiday in 2002, her uncle again invited her to join NPA. She learnt from her mother that her uncle had visited her mother in around April 2013 but had not contacted her since then. Her siblings told her that NPA was dangerous and they forced people to join by kidnapping them.
15. The 1st Applicant also feared that her children born out of the wedlock with her husband would abandon or shun her for being an embarrassment to their family in having given birth to the 2nd Applicant with another man.
The finding of the Board under its 1st Decision
16. The Board noted that the 1st Applicant had not communicated with her husband for 20 years. Their last meeting was in 1999 and it was a friendly visit. Although her husband said he would kill the 1st Applicant if he learnt she had a child with another man, that was a casual remark to Shirley’s seemingly hypothetical question. The Board found that the response was not meant to be serious. It also noted that the 1st Applicant’s children, who were aged 28 and 19 then, should understand her situation.
17. In relation to the perceived threats from her uncle, the Board noted that her uncle never threatened or make any inducement for her to join NPA and the invitation in 1991 was seemingly made “out of good will”. The invitation in 2002 was not accompanied by any threat or inducement.
18. As for the uncle’s visit to the 1st Applicant’s mother in 2013, her mother did not mention anything about her uncle wanting her to join NPA.
19. On the basis of credible Country of Origin Information (“COI”), the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from the NPA and her husband. It was satisfied that the Philippine government had taken steps to improve police efficiency and effectiveness and protect its citizens.
20. The Board also considered it reasonable for the 1st Applicant to relocate herself elsewhere in the country to avoid any possible risk and it would not be unduly harsh to expect her to do so.
21. For the above reasons, the Board found that the 1st Applicant had failed to make out a case for non-refoulement protection. As the 2nd Applicant’s claim hinged on the claim of the 1st Applicant, her claim also failed.
The additional facts relied on by the Applicants in their claim under BOR 2 Risk ground and the Board’s finding under its 2nd Decision
22. The Applicants advanced four grounds based on (a) the 2nd Applicant’s language problem; (b) the threats from the 1st Applicant’s uncle; (c) the threat from the 1st Applicant’s husband; and (d) the current political situation in the Philippines.
23. Under Ground (a), the 1st Applicant argued that the 2nd Applicant was born and educated in Hong Kong, she is conversant with the English and Chinese language but not Tagalog and has difficulties living in the Philippines. That was rejected by the Board because English is also spoken in most parts of the Philippines. The Board also thought that children could easily pick up a new language. Hence, if the 1st Applicant makes simple effort to speak to her in Tagalog, the 2nd Applicant can easily become conversant with Tagalog.
24. Under Ground (b), the 1st Applicant said she was scared of being taken away or compelled to live a life with NPA. That is contrary to her evidence given before that she had a choice to accept or reject her uncle’s invitation to join NPA. Indeed, her uncle never compelled her to join. There was no evidence that her uncle had ever intended to harm the 1st Applicant for refusing to join. Furthermore, according to the COI, the Philippines government takes a hard stance towards NPA[5] .
25. Under Ground (c), the 1st Applicant repeated her fear about her husband’s threat. In its 1st Decision, the Board found her fear was not genuine because her husband’s response to kill her was just a remark to a hypothetical question in the course of a casual conversation, which was not uttered with seriousness or with the intention that it will be carried out.
26. Under Ground (d), the Applicants relied on the current political situation in the Philippines. It appears from 1st Applicant’s supporting affirmation filed on 1 February 2019 that she had presented 157 items of COI on human rights in the Philippines at the hearing before the Board. Obviously, the Board had examined them. In paragraph 17 of the 2nd Decision, the Board found those COI were about drug related and politically motivated killings. The Applicants are not within these two categories. The 1st Applicant also confirmed at the hearing that she is neither a drug dealer nor a drug user nor has she been involved politically. Thus, despite the reported alarming infringements of human rights and extra-judicial killings in the Philippines, the Board held that the Applicants were not at risk. This is because the 1st Applicant’s feared harm arose from her personal or private dispute with her husband or from her uncle or NPA against which the Philippines government takes a hard line.
27. For the above reasons the Board dismissed the Applicants’ appeal.
Legal principles applicable to judicial review
28. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6] . Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
29. In her Form 86, the 1st Applicant attached an eight-page statement titled “Factual Basis of Claim” advancing nine grounds of application. In her supporting affirmation, she exhibited a bundle of documents prepared by Mr Tibbo for the purpose of the appeal hearing before the Board. These documents include: (a) a Notice of New Evidence dated 27 March 2018 of 27 pages containing COI of the Philippines; and (b) Mr Tibbo’s skeleton submissions of 56 pages. The Applicants also adopted Mr Tibbo’s submissions for the purpose of this leave application.
30. The 1st Applicant who also represented the 2nd Applicant was not conversant with these grounds of application. She said that these grounds were prepared by someone on behalf of the Applicants and she understood them. Obviously, she did not. The Court had to explain her grounds to her when discussing them with her. These grounds went beyond the scope of the Decision and contained a “Tibbo flavour” as they reflected Mr Tibbo’s skeleton submissions and attacked the Board’s criticism of Mr Tibbo’s application to join the Father. These grounds are dealt with below.
Ground (1) – Procedural unfairness in discriminating against the 2nd Applicant’s Father
31. There are multiple bases of complaint under this ground. The general tenor of this ground is that the Father was discriminated in not being allowed to be made a party to the appeal or the non-refoulement claim with the result that the Applicants’ claims could not be processed as one claim by a family. The Applicants’ and the Father’s claims arose under entirely different factual circumstances. The basis of their claims are totally different. It was a case management decision for the decision maker as to how to process their claims. The court in a judicial review may not intervene in that decision unless it involves error of law, procedural unfairness or irrationality.
32. The 1st Applicant could not explain how, if the Father’s claim was heard together with theirs, that would enhance their chance of success. All that she could say was that Mr Tibbo did not want them to make two applications. If the Applicants are entitled to non-refoulement protection, that does not necessarily mean the Father will be given protection’ regardless of merits. The same is true vice-versa. According to the 1st Applicant, the 2nd Applicant did not intend to live in Sri Lanka. Without making the Father a party and without the Father claiming custody of the 2nd Applicant, it removed the risk of the 2nd Applicant being refouled to Sri Lanka. The Board’s refusal could not be criticised at all for error of law, procedural unfairness or irrationality.
33. The Applicants complained that the Board failed to provide a fair hearing for various reasons. Those reasons revolve around the Director concealing the relationship between the Father and the Applicants from the Board, failing to screen or assess the 2nd Applicant’s claim under her Father’s claim, failing to screen the 2nd Applicant’s claim individually, and effectively ignoring her claim and legal rights for protection.
34. From the 1st Decision and 2nd Decision, it is manifestly clear that the Board knew the relationship between the Applicants and the Father. Even the 1st Applicant admitted to the Court that she believed the Board was aware of their relationship. All these complaints have no factual basis. They are frivolous and vexatious.
35. As for the complaint about the Director’s failure in screening the 2nd Applicant’s claim under the claim of the Father or by herself, the 1st Applicant said she did not know the Father had applied for protection for the 2nd Applicant. The 1st Applicant had submitted a non-refoulement claim form on behalf of the 2nd Applicant and attended two screening interviews on her own behalf as well as that of the 2nd Applicant in April and May 2011. The 2nd Applicant was only about two and half years old at the time of the interviews, it would serve no purpose to hold an interview with the 2nd Applicant. The complaint is devoid of common sense.
36. The Applicant complained that the Board failed to make enquiries into the substance of “such matters”, failed to make any enquiries with Mr Tibbo on his instructions from the 1st Applicant and the Father and made findings without any due consideration to the “vast evidence” that exists in the hands of the Applicants and Father and the Director since 2013.
37. These grounds are lacking in particulars. The 1st Applicant was unable to identify what contemporaneous documentations were withheld by the Director, what were the matters which the Board failed to make enquiries into and what enquiries the Board failed to make with Mr Tibbo. The burden of proving their claim to protection is on the Applicants. If Mr Tibbo had any useful information to proffer, the 1st Applicant should have called him to testify or disclose the information herself rather than to leave it to the Board to investigate from the Applicants’ legal team. It is a nuisance to make their own failure as a ground of attack on the Board’s decision.
38. Next, the Applicant complained that the Board’s attacks on Mr Tibbo are defamatory, arbitrary and racist, without ever giving counsel the opportunity to be heard. Mr Tibbo had made an application by letter. It was refused by the Board for lack of factual and legal basis. It commented that the application had nothing but nuisance value and that counsel should be reprimanded. The refusal could not be criticised as having been made as result of error of law, procedural unfairness or irrational. As for the Board’s comment, this is not the occasion to adjudicate. Having seen these grounds which reflected the basis of Mr Tibbo’s application for joining the Father, the Board’s sentiments could be understood.
39. Then, the Applicant complained that “the Duty Lawyer Service removed Mr Tibbo as counsel, lied to the Applicants stating Mr Tibbo was still their counsel”, failed to file submissions prepared by Mr Tibbo and failed to provide a copy of all submissions prepared by Mr Tibbo to the Applicants before the hearing of the appeal. All these are bare allegations unsupported by evidence, not even an affirmation by the Applicant herself. The accusation about the Duty Lawyer Service lying to the Applicants is a particularly serious one. At the hearing, the Applicant confirmed that Mr Tibbo and HTW were her privately instructed legal team before the hearing of the appeal, but then she switched to be represented by the Duty Lawyer Service at the hearing. It must have been the Applicants’ choice to terminate, to use a neutral term, Mr Tibbo’s retainer. If they wished to retain Mr Tibbo on private basis, there was no way the Duty Lawyer Service could have “removed” him. The representation that the Duty Lawyer Service removed Mr Tibbo as counsel is a deliberate fraudulent misrepresentation, utterly without factual basis. All the other complaints about the disservice of the Duty Lawyer Service are incomprehensible in the above factual context. The Duty Lawyer Service were in no position and had no obligation to do what the Applicants alleged them of having failed to do. All these complaints about the Duty Lawyer Service failures, even if true, are matters between the Applicants, their legal team and the Duty Lawyer Service, unknown to the Board and could not have tainted the Board’s 2nd Decision. The Court did not find it necessary to investigate into those matters and unnecessarily burden this decision. They did not involve any error of law, procedural unfairness or irrationality in the 2nd Decision or its making.
40. In summary, the factual basis on which this ground is founded have been denied by the Applicant herself. This ground is not supported by any factual basis. It is frivolous and vexatious.
Ground (2) – Breach of the Applicants’ privacy
41. Under this ground, the Applicants alleged that “[the Board] breached the [Applicants’] privacy rights by wrongfully and illegally disclosing the confidential [2nd Decision] to the Duty Lawyer Service (“DLS”) on 5 October 2018 when DLS was not the organisation instructed by and acting for the Applicants in the [appeal].” They accused that the Board “failed to acknowledge and accept that the lawyers on record from March 2018 to October 2018 were Ho Tse Wai & Partners (“HTW”) and counsel instructed by HTW was at all material times Mr Robert Tibbo, Barrister-at-law.”
42. The complaint under this ground is alarming. Except the fact that the 2nd Decision had been communicated to the Duty Lawyer Service, this complaint is not supported by any evidence. There was nothing inappropriate as the Duty Lawyer Service was the Applicants’ legal representative at the time. More importantly, it was flatly denied by the 1st Applicant at this hearing. She confirmed in no equivocal terms that HTW and Mr Tibbo represented them before the hearing of the appeal but they were represented by the Duty Lawyer Service at the hearing of the appeal. It appears on the 2nd Decision that the Applicants were represented by Ms Alva, counsel assigned by the Duty Lawyer Service. Mr Tibbo knew about the hearing date, if he was still counsel for the Applicants, why did he not appear at the appeal? This ground amply demonstrates the nuisance value in this ground and in Mr Tibbo’s written skeleton submissions relating to this ground.
Ground (3) – Failure to take into account significant change in circumstances in the Philippines since Duterte was elected president
43. This ground formed the bulk of Mr Tibbo’s 56 pages of skeleton submissions and 27 pages of COI. The Board had dealt with this ground succinctly in Part (D) of its 2nd Decision. After quoting from the Human Rights Report updated to 3 March 2017 published by the State Department of the United States which was quoted by Mr Tibbo, it held at paragraphs 17 and 18:
“17. Those reports concerned only drug related killing and politically motivated killings. The Petitioners are not within the above 2 categories. The 1st Petitioner confirmed at the hearing that she is neither a drug dealer nor a drug user nor has she been involved politically.
18. In Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 500 F-H it was held the standard of state protection required is one of a practical standard taking into account of the state’s duty to establish and to operate a system of protection against persecution of its own national. It is not required that the state to provide protection that could eliminate all risk and amount to guarantee of protection.”
44. The Applicants not being drug traffickers or abusers or politically active persons (in the anti-government sense) are not at risk of the type of risk arising from the high handed manner President Duterte dealt with drug traffickers and his political opponents. At this hearing, the 1st Applicant confirmed the same. There is no factual or legal basis in support of this ground.
Ground (4) – Ignoring the threat of death due to moral transgression of bearing a child with another man while married
45. This issue had been considered and dealt with in the 1st Decision. The 1st Applicant had left her husband for sixteen years as at the time of the 1st Decision. The Board found her husband had made no attempts to locate her for all those years and had no concern about her. Though her husband met with her friends while he was in Hong Kong, he did not even try to locate her. When he was asked by the Applicant’s friend what he would do if he knew about the 1st Applicant’s child with another, he only replied he would kill her. But his reply, as the Board found, was not made in a serious manner. It was just a casual remark in a casual conversation. There was no expression of moral transgression or condemnation. The Board found the 1st Applicant was not at risk of harm from her husband. That finding is final. After all, sixteen years had lapsed by then; and twenty-seven years by now. There is no substance in this ground.
Ground (5) – Unreasonable to refuse to have the Applicants’ application heard together with the Father’s
46. This ground has been considered under Ground (1), particularly under paragraphs 30 and 31 above.
Ground (6) – The 1st Notice of Decision is unreasonable
47. The Applicants complain that the finding in the 1st Notice of Decision that there is no risk to life is unreasonable in that the decision maker failed to take into account and/or put full weight on cogent evidence and cherry-picked certain evidence of little or no importance. It is not entirely clear what they meant by “the 1st Notice of Decision”. Insofar as they are referring to the first Notice of Decision issued by the Director on 12 November 2014 (ie the “1st Notice” used in this Call-1 Form), it was superseded by the Board’s 1st Decision dated 10 July 2015 and is no longer susceptible to judicial review: Re Moshsin Ali[7] . If they are referring to the 1st Decision issued by the Board, any application to review that decision is badly out of time by seven years. As was held by Litton NPJ in Po Fun Chan v Winnie Cheung[8] , where an applicant is many months out of time, leave to apply out of time may be refused “however strong the complaint might otherwise be”. Whether the Applicants are referring to the Director’s 1st Notice or the Board’s 1st Decision, this ground may be dismissed for the above reasons without having to consider merits.
48. Even on merits, there is no substance under this ground. The Applicants are seeking to challenge the finding of fact by the Board. This complaint is un-particularised. They have not identified the cogent evidence on which the Board failed to take into account and the evidence of little or no importance to which the Board gave undue weight. Furthermore, finding of fact is solely a matter for the Board. The court in a judicial review may not interfere in the Board’s finding of fact unless it involved error of law, procedural unfairness or irrationality. No such vitiating elements has been alleged under this ground.
Ground (7) – “The [Board’s] finding fails to even consider or decide whether reasonable internal flight relocation alternatives exist in the Philippines is unreasonable”
49. This ground is quoted verbatim. Having found the Applicants will not have any risk of life under BOR 2 upon their return to the Philippines, there was no need for the Board to consider the option of internal relocation to avoid a non-existing risk.
Ground (8) – “The [Board] erred in law by ignoring evidence of international condemnation of the human rights situation and manifest failures in the rule of law in the Philippines in particular the various special rapporteurs condemning the atrocities committed by the past and the International Criminal Court (“ICC”) investigation into Duterte and his government having committed crimes against humanity”
50. This ground is quoted verbatim for what it is not worth. The complaints mentioned under this ground are in the context of Duterte government’s violation of human rights in its high handed manner in dealing with drug traffickers and political opponents. The Applicants admitted that they do not fall within those categories. For reasons as explained in paragraphs 43 and 44 above quoting paragraphs 17 and 18 of the 2nd Decision, this ground has no substance. Putting the Applicant’s ground to the extreme, Hong Kong will have to be home for the entire population of the Philippines (other than President Duterte’s supporters) and its drug traffickers’ paradise.
Ground (9) – The Board’s finding is unreasonable in failing to mention highly relevant COI
51. This ground is another renewed attack on the finding of fact of the Board. It accused the Board’s finding that the COI submitted by the Applicants were confined to drug-trafficking and political killings and that “the entire Decision is riddled with boiler plate assertions without any reference or full reference to the evidence”. The Board’s finding is absolutely correct. There is not a single COI that supports Duerte government’s supporting or turning a blind eye to domestic violence or killing for moral transgression. The COI submitted by the Applicants are irrelevant.
Overall scrutiny of the 2nd Decision
52. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s understanding of the law and key legal principles relating to the BOR 2 Risk ground, the burden of proof and standard of proof is correct; and it observed a very high standard of fairness. It correctly identified the factual and legal issues involved in the claim.
53. The Applicants’ claim is founded on the 1st Applicant’s feared harm from her husband and from the NPA which had been finally decided by the Board in its 1st Decision. They raised two further grounds based on the 2nd Applicant’s language problem and the current political situation in the Philippines. The 2nd Applicant has no separate ground specific to herself other than her language problem. Her claim hinges on the 1st Applicant's. The Board carefully considered those grounds and the COI advanced by the Applicant. It rejected them as it found there was no factual basis to support the Applicants’ claims for non-refoulement protection under BOR 2 Risk ground. This is a finding of fact.
54. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge their burden of proving their fears and risks. 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. There were no such vitiating elements in the Decision. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
55. For the above reasons, it would be futile to grant extension of time to file the application. The Applicants’ application for leave to apply for judicial review was refused.
56. Though having made the above decision, the Court cannot refrain from its concern about the state of affairs created by this case. The 1st Applicant was arrested by the police for overstaying. She was sentence to 9 months’ imprisonment. After her discharge from prison, she was released on recognizance on 15 January 2008 and thereafter allowed to stay in Hong Kong for more than 14 years without being repatriated, despite the absence of any good ground for non-refoulement protection. She must have deployed what she could during these fourteen years to resist or delay her repatriation. That state of affairs has created the fourteen-year old 2nd Applicant who through no fault on her part is neither a Sri Lankan nor a Filipino but has become a Hong Kong belonger, born and educated in Hong Kong and speaks its two official languages, but not Sri Lanka or Philippine languages. The Immigration Department could not be free from blame for such a state of affairs. It has a moral duty to resolve the plight of the 2nd Applicant, partly created by its own failings.
Dated 8th day of July 2022.
( Allen LEE )
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 :
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);
Sent to the ApplicantsDel Monte Ma Mercedes Dolorso Del Monte Maria Marjith Stefanie Wijemanna
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 8/7/2022Torture Claims Appeal Board /Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] CACV 63/2015
[2] 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”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance , Cap 383
[5] The Board mentioned “PLA” instead of “NPA”. That was obviously a typo.
[6] [2018] HKCA 524 at para 14(1)
[7] [2018] HKCA 549
[8] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ