Rabanal Delia Dalu and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1685/2018

[2019] HKCFI 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1685 of 2018

BETWEEN

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 Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The 1^st applicant is a national of the Philippines and the mother of the 2^nd and 3^rd applicants. The 1^st applicant arrived in Hong Kong with the 2^nd applicant on 21 March 2011 were permitted to remain as visitors till 2011.  However, they did not leave and overstayed in Hong Kong before surrendering to the Immigration Department on 26 April 2011.  In 2012, the 1^st and 2^nd applicants filed a torture claim which was rejected in January 2013 as was the appeal to the Torture Claims Appeal Board (“TCAB”) in March 2013.  However, in July 2013, the 1^st and 2^nd applicants lodged a non-refoulement protection claim.  On 17 March 2013, the applicant’s second daughter, the 3^rd applicant was born in Hong Kong.  The applicant applied for non-refoulement protection for both daughters.

2.The applicant had first come to Hong Kong as a foreign domestic helper in 2003 and remained here until 2008 when she returned pregnant to the Philippines.  She met the father of both daughters in Hong Kong and when she fell pregnant the first time she went back to the Philippines to give birth.

3.The applicants non-refoulement protection claims were dismissed by the Director of Immigration (“the Director”) on 14 September 2017.  They lodged appeals/petitions to the TCAB which conducted an oral hearing on 16 May 2018 before dismissing appeals on 28 June 2018.  The applicant’s filed a notice of application for leave to apply for judicial review against that decision on 20 August 2018.  They did not request an oral hearing therefore; I have considered their applications on the papers.

4.The Director and the adjudicator set out the applicants’ claims and the 1^st applicant’s evidence in detail in their decisions therefore, I will only summarise it here.  The basis of the 1^st applicant’s claim is that if they were to return to the Philippines, she and her daughters would be harmed or killed by members of the New People’s Army (“NPA”) because she had given refuge in her own home to her cousin Reuben, an NPA member who was hiding from the NPA having killed two of its members.  There were several incidents after he had come and gone which she relied on to prove she was at risk of harm from the NPA.  Her evidence is that they knew she had let Reuben live in her home in hiding.  She said one of her maternal uncles was killed in November 2010 and she suspected the NPA killed him.  Reuben’s own brother and brother-in-law disappeared that same year.  Then she received a letter at the beginning of 2011 from the NPA threatening to kill her and her eldest daughter, the 2^nd applicant if they did not tell the NPA where Reuben was hiding.  In fact, Reuben had only stayed with her for six months, leaving her home in September 2009.  She has not heard from him since.  However, she felt that even after he left, there were NPA people monitoring her house from outside which led her to seldom sleep in her own home.

5.The final straw was when she said in February 2011, a NPA member approached her at home and said if she did not tell them where Reuben was then they would kill her and her daughter.  He verbally threatened her; telling her he would give her some time to disclose his whereabouts.  The applicant was so frightened by this visit that she and her daughter left the home immediately to stay with a friend and simultaneously make arrangements to come to Hong Kong.

6.Obviously the 3^rd applicant, the youngest daughter has not been subjected to any threat or harm by the NPA or anyone in the Philippines because she was born in Hong Kong and has never been to the Philippines.  The applicant was of the view that it would be impossible to relocate to Manila or any other place in the Philippines because the NPA was such a powerful political group and they would find her wherever she lived.  She also refused to approach any authorities for help because she did not know if they were there to help victims or were in fact the enemy.

7.The adjudicator, as did the Director, analysed the applicants’ claim under all applicable grounds.  The 3^rd applicant had not had any torture claim previously considered unlike her sister and mother;

a.  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator of the TCAB treated the appeal as a rehearing and held an oral hearing where the 1^st applicant appeared in person.  The adjudicator correctly set out the law and key legal principles applicable to all grounds.  He set out in full and in detail the applicant’s evidence, claim and the country of origin (“COI”) information considered.

9.The adjudicator did not find her claim of either past threats or future risk to herself or her daughters credible.  He found that the events she suspects the NPA were responsible for did not relate to her or her daughters.  He took into account that she said the NPA knew of her whereabouts from 2009 until she left for Hong Kong in March 2011, yet, did not physically harm her during that period of time.  There is no reason to believe that they would harm her if she returned to her home town and no evidence that they would seek her out if she relocated internally.  The only fact he found proven are that the 1^st applicant was from the Philippines and outside her country of nationality as were her daughters.

10.The adjudicator found that the applicant had failed to establish a real risk of persecution and that in all probability the applicant came back to Hong Kong to be with and continue a relationship with the father of her children.  The adjudicator found that the applicants had not made out a successful case on the other applicable grounds.  They were unable to show they were at risk of CIDTP or torture refouled to the Philippines.  He noted that the torture risk claim in respect of the 1^st and 2^nd applicants had already been finally determined and that there were no new grounds or any new evidence to show that the 3^rd applicant would be at risk of torture if she returned to the Philippines.  They had failed to show that returning to the Philippines would expose them to a real risk of a violation of their rights to life so as to constitute a breach of BOR 2.  He also found that internal relocation was a viable option.  The adjudicator confirmed the decision of the Director.

11.The applicant’s supporting affirmation contained an exhibit which set out for grounds that she relies upon.  They are that the adjudicator had unlawfully feted his discretion by refusing the appeals.  Secondly, the adjudicator acted in a procedurally unfair manner in dealing with the appeals.  Thirdly, the respondent’s decision to dismiss the appeals was unreasonable or irrational in the public law sense or as a result of procedural error or unfairness.  Lastly the adjudicator failed to maintain a high standard of fairness to the applicants.

12.There are no proper particulars to support those grounds.  The applicant has stated they were not given an opportunity to put forward submissions in an oral hearing nor were they invited to submit written submissions.  However, this is misleading when the adjudicator conducted an oral hearing on 16 May 2018 and made sure that the applicant was able to communicate via a translator and aware of the proceedings.  The applicant appears to say she had no opportunity to reply to submissions made by the Director but she would have received them prior to the hearing and had an opportunity during the oral hearing to make submissions.  She told the adjudicator she could read and speak English.  In any event, she does not give any particulars as to what submissions she would have made.

13.There is also a complaint that the adjudicator has significantly relied on COI which was not officially recognised or was hearsay.  He relied on information that was outdated considering dramatic changes but no particulars are given here of this complaint.  The adjudicator rejected the credibility of the applicant’s claim but did nonetheless consider COI information relating to the NPA.  The information was obviously current and relevant.

14.I have considered the applicant’s grounds and submissions as well as examined and scrutinised the adjudicator’s decision. I do not find he made any errors of law nor do I see any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

15.In my judgement, the claim of all three applicants is not reasonably arguable.  There is no realistic prospect of success, therefore, I refuse leave to apply for judicial review.

Dated the 25^th day of June 2019

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