Estacio Rechie Lacno v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2287/2018

[2021] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2287 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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in1979, is a national of the Philippines.  She worked in Hong Kong as a domestic helper from 2009 to 2015.  Her contract was terminated on 7 December 2015 and she overstayed in Hong Kong from 26 February 2016.  On 11 April 2016 she surrendered herself to the Immigration Department.  She then lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her husband as she had suffered domestic violence at his hands in the past. She also mentioned a fear of a terrorist group who had been bombing and killing people near her home village.

The Director’s decision

4.By a notice of decision dated 20 December 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband upon return to the Philippines.  Furthermore, state protection is available to the applicant and internal relocation is a viable option for her. The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 30 May 2018.

6.By a decision dated 12 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [43-56] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s account of primary facts was not challenged by the Board;

(2)  however, the Board found that a past history of domestic violence does not suggest there is a real risk of harm to her of further violence now or in the reasonably foreseeable future [50];

(3)  there are laws in force to protect women and practical avenues of protection in the Philippines [51];

(4)  her claims to fear harm from terrorist activity are simply general and non-personal claims, the terrorist threat is not so severe that it presents a real risk of harm to the applicant [53];

(5)  the Board was not satisfied that the applicant would face real risk of harm that would warrant international protection [54];

(6)  the risk of harm on all applicable grounds is far-fetched and fanciful which does not rise to a real risk [56].

8.Having considered all the evidence and circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled.  

9.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 22 October 2018 for leave to apply for judicial review of the decision of the Board.

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

12.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  She only repeated her claim and attached 231 pages of document apparently consisting of the hearing bundle before the Board and documents she had submitted.

Discussion

13.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

14.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

15.In the present case, the Board gave her account of primary facts and events the most favourable interpretation.  The Board did not take issue with the applicant’s asserted primary facts and events.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment that the perceived risk of harm is far-fetched and fanciful which does not rise to a real risk.

16.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  It contained only a regurgitation of her claim.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

18.The Board has taken a view on credibility most favourable to the applicant.  The applicant did not lodge the claim until 3 months after she overstayed.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the applicant’s credibility.

19.Further, even if one givesthe claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.

20.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

22.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

24.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

25.Accordingly, application for leave to apply for judicial review is refused.

Dated 21 January 2021

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