Ortiz Marisa Dagale v. Torture Claims Appeal Board/ Non-refoulement Laims Petition Office

HCAL 2494/2018

[2021] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2494 OF 2018

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 in 1972, is a national of the Philippines.  She worked as a domestic helper in Hong Kong from 2000 to 2011.  When her contract was prematurely terminated, she overstayed since 16 September 2011.  On 24 July 2014 she surrendered herself to the Immigration Department.  She also 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 [23] 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 in the Philippines.  She claimed that during her unregistered marriage with her husband, he often assaulted her and forced sex on her.  They have 4 children.  Eventually, they registered their marriage in 2000.  She left her country to take up employment in Hong Kong in 2000.  From time to time, she returned to her home in her country.  In September 2003, she returned to her country to give birth to her daughter. Her husband accused her of having extramarital affair in Hong Kong. After she returned to Hong Kong, she started a new relationship with a Pakistani. In September 2011, her husband discovered the pictures of her with that man.  He became furious.  He threatened to kill her.  In October 2016, her husband threatened her over phone that he will find her and kill her.

The Director’s decision

4.By a notice of decision dated 13 September 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 and substantial 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 7 August 2018.

6.By a decision dated 26 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 [30-62] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board found the applicant evasive in answering the questions put to her.  She did not convince the Board to be a reliable witness or that her version of story regarding the threats is believable.  Furthermore, her account was vague and lacking in particulars with inconsistencies and contradictions.  Her credibility was damaged [31];

(2)  while she might have been involved in a relationship with another man, apart from that, all other claims including the alleged threats from her husband are not accepted [38];

(3)  in any event, state protection is available and internal relocation is a viable option for the applicant [46, 62].

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

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 7 November 2018 for leave to apply for judicial review of the decision of the Board.

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

11.In the Form 86 and supporting affidavit, the applicant did not set out any proper grounds for the relief sought.  She only repeated that she cannot be returned to the Philippines as she will be killed or severely harmed by her husband.

Discussion

12.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.

13.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.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found her to be an incredible witness.  The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15.Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

16.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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 affidavit to suggest how the Board erred in the public law sense.  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.Indeed, the applicant delayed in lodging the claim for protection after she overstayed in Hong Kong.  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 and adversely affected the credibility of the claim.

19.Further, even if one gives the 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 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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

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 26 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