SINGH YUVRAJDEEP AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 315/2019

[2024] HKCFI 1145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 315 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 3rd Applicant in open court; and the 1st, 2nd and 4th Applicants being absent;

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 1 February 2019 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 28 December 2018 (“Decision (A)” ) and 4 December 2019 (“Decision (B)” ) (collectively, the “Decisions”) dismissing their appeals against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision respectively dated 30 November 2017 (“Notice(A)” ) and dated 30 July 2019 (“Notice (B)” ) (collectively, the “Notices”).

2.  The 3^rd Applicant is a Philippine national, now aged 42.  She entered Hong Kong to work as a foreign domestic helper and was permitted to remain until 4 January 2015.  She married another non-refoulement claimant from India (the “husband”) in May 2014.  She overstayed and surrendered to the Immigration Department on 7 January 2015.  She gave birth to the 1^st, 2^nd and 4^th Applicants, now 5 to 9 years old (collectively, the “children”).

3.  Between 29 April 2016 and 9 January 2019, the 1^st to 3^rd Applicants and then the 4^th Applicant filed their claims for non-refoulement protection.  In due course, their claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claims were dismissed by the Director’s two Notices.  Their appeals against the Notices were dismissed by the Board’s Decisions.  They now apply for leave to apply for judicial review of those Decisions.  The husband’s non-refoulement claim under HCAL 338/2017 was rejected and finally concluded on 26 April 2023[5]. The 3^rd Applicant had applied to join the husband in these proceedings, but her application was dismissed by this Court on 27 September 2023.

4.  As the 1^st, 2^nd and 4^th Applicants are minors, the 3^rd Applicant who represented them had been advised by letter dated 22 August 2023 and re-sent on 6 October 2023[6] to seek legal representation whether by the Duty Lawyer Service or private solicitors.  Subsequently, the Court was informed by the Director of Legal Aid that the 3^rd Applicant had applied for legal aid on behalf of the children in November 2023 but their applications were refused on 8 February 2024.  Five months have lapsed since the re-posting of the letter.  Accordingly, a hearing was scheduled.  At the hearing, the 3^rd Applicant confirmed that she will not seek private legal representation and would continue to act in person for herself and the children.  Having provisionally assessed the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with the hearing.

The Applicants’ case

5.  The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 3^rd Applicant with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, they claim that they would be ill-treated or killed by the 3^rd Applicant’s family, if refouled to the Philippines, because she married an Indian Sikh and converted from Christianity to Sikhism.

6.  The 3^rd Applicant was a Catholic born from a Catholic family.  She had received about 12 years’ formal education and obtained a college diploma.  She had worked as a domestic helper in the Philippines and a foreign domestic helper in Hong Kong from 2008 to 2014. 

7.  She came to know the husband in 2012 while working in Hong Kong.  They married on 8 May 2014 and gave birth to their eldest son, ie the 1^st Applicant, in October the same year.

8.  In December 2014, the 3^rd Applicant returned to the Philippines to attend her brother’s burial.  While there, she revealed to her family that she had married an Indian Sikh and had a child.  Her family was unhappy about the news as they considered Indians to be evil and could not accept the fact that her husband followed a different religious faith.  Her parents told her that she was no longer a member of the family.  Her younger brother said he would kill her and her child, ie the 1^st Applicant, if they came to the Philippines.  His younger brother was politically well-connected and had a gun.  The 3^rd Applicant was afraid and ran away from the family home to stay with a friend in the same village for the night.  She did not report the threat to the police because she did not want to bring trouble to her family.  She flew back to Hong Kong on the following day.  

9.  Shortly after, her employment was terminated.  She did not return to the Philippines but overstayed in Hong Kong.  She changed her telephone number and completely cut off ties with her family.  She did not receive further threats from them.  She subsequently gave birth to another son in 2017 and a daughter in 2018, respectively the 2^nd and 4^th Applicants. 

10.  Because of her family’s reaction to her marriage and her religious conversion, she fears that she and her children would be harmed if they return to the Philippines.  She has little confidence in the Philippine police as she believes they are corrupt and would not assist her without a bribe.  She does not consider internal relocation feasible because her younger brother would be able to locate them through his connections. 

Finding of the Board in Decision (A)

11.  The 3^rd Applicant testified on behalf of herself and the 1^st and 2^nd Applicants.  The Board found the number and nature of inconsistencies and contradictions in her evidence were sufficiently serious as to undermine the reliability of her evidence.  In her written signification, she presented a case which is significantly different from that as stated in her NCF.  She said “(my family) they try to hurt me and try to separate me with my Husband and Son …”.  That is very different from a mere expression of anger or disapproval as presented in her NCF and as repeated by her during the screening interview.  In her NCF, she said she was scared that her younger brother would act on his threat because he was bad tempered and had a gun.  At the hearing, she presented a more threatening picture and for the first time alleged that her younger brother was drunk, actually took out a gun from his side and said he would kill her if she did not leave the family.  The Board considered her oral evidence was an attempt to embellish her story.

12.  However, even on the basis of the account as presented in her NCF which the 3^rd Applicant finally asserted is true, her parents had never tried to hurt her.  There was no or no reliable evidence to show that her younger brother or other family members posed any threat to her or that she had suffered physical and/or mental suffering at all and/or suffering of the requisite severity.  As there was no evidence that her family had ever tried to contact her over the past four years, the Board found the chances of any threat to the Applicants appeared to be slim. 

13.  The Board also found the harm and ill-treatment faced by the 3^rd Applicant are personal to her from her younger brother and other family members, all of whom are non-state actors.  There was no evidence of any state involvement. 

14.  On the basis of authoritative and credible country of origin information (COI), the Board found adequate state protection will be available to the Applicants upon their return.

15.  As the evidence was that her younger brother and other family members did not trace her outside the home village, the Board found that with her age, education and experience as a domestic helper, the 3^rd Applicant can relocate with the 1^st and 2^nd Applicants to other cities such as Manila or Quezon City.

16.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicants had failed to establish the factual basis to support their claims for protection under any of the four applicable grounds under the USM and dismissed their appeals against the Director’s Notices.

Finding of the Board in Decision (B) 

17.  The appeal against Notice B was heard before the Board constituted of the same member.  The 3^rd Applicant represented the 4^th Applicant and testified on her behalf.  She adopted, on behalf of the 4^th Applicant, her (ie the 3^rd Applicant’s) own background circumstances to support the 4^th Applicant’s grounds for non-refoulement protection.  The Board made similar observations and finding as in Decision (A), but enlarged its finding on the issue of religious persecution.

18.  The Board specifically noted that the case was not presented as a “religious conversion” case but a case of private family dispute which was accepted by the 3^rd Applicant.  The Board found on the basis of the 3^rd Applicant’s evidence it was likely that what she experienced during her visit in December 2014 was her family’s reaction to her marriage to an Indian Sikh and her conversion from Catholicism to Sikhism.  The reaction arose simply because of possible societal pressure or the family or social sham she brought them and nothing more.  It was not satisfied that that the circumstances experienced by the 3^rd Applicant gave rise to a reasonable fear of persecution on the basis of religion.

19.  For the same reasons, the Board reached the same finding and conclusion as it did in Decision (A) and dismissed the 4^th Applicant’s appeal against Notice (B).

The legal principles applicable to judicial review

20.  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[7].  

Grounds for judicial review

21.  The 3^rd Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she said she could not go back to her home country because her life is still in danger there.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she 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.  

22.  After the legal principles in the preceding section was explained to her, the 3^rd Applicant confirmed that she had no complaint about errors of law, procedural unfairness and irrationality.  She understood she could not challenge the Board’s finding of fact except on these three basis.  She only wished the Court to review the Decisions by reconsidering her claim.  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. 

Discussion

23.  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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Though the Board made some adverse comments on the 3^rd Applicant’s credibility, it nevertheless assessed all the claims wholly on the basis of the case as the 3^rd Applicant asserted.  It was on that basis that the Board found the 3^rd Applicant’s feared ill-treatment is unlikely to materialise; and even if it does, the proscribed harm or risk of harm could be prevented by state protection or avoided by internal relocation. The 3^rd Applicant had not advanced any separate basis of claim on behalf of the 1^st, 2^nd and 4^th Applicants’.  The children’s claim is rested entirely on the 3^rd Applicant’s.  Hence, their claims stand or fall with the 3^rd Applicant’s.  Accordingly, the Board came to the conclusion that all the Applicants are not entitled to non-refoulement protection under any of the applicable grounds under the USM.  These are mixed finding of facts and of law.  Insofar as it is a finding of fact which the Applicants could have no complaint as the Board accepted the 3^rd Applicant's evidence entirely and assessed their risk of harm on the basis of those evidence.  In any event, such finding of fact is 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.  Insofar as it is a finding of the law, the Court could detect no error of law in the Decisions or procedural unfairness in the making of the Decisions. The Decisions do satisfy the enhanced Wednesbury test.  They are not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks of harm.  The Decisions are utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

24.  Accordingly, the application for leave to apply for judicial review 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