Lazaro Luzviminda G v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1135/2018

[2021] HKCFI 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1135 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 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 1951, is a national of the Philippines.  She first arrived in Hong Kong in 1990 to take up employment as a domestic helper and was last permitted to remain until 8 September 2006. When her last contract expired, she became overstayed in Hong Kong since 9 September 2006.  On 2 December 2015 she was arrested for overstaying and sentenced to 6 months’ imprisonment.  On 7 March 2016, she 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 [5-15] 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 brothers-in-law because of a land dispute.  She claimed that her late husband was one of 10 siblings and they all lived in a family compound in Ugong, Pasig City in the Philippines.  Her late husband did not have a good relationship with his brothers, in particular three of them, Clemente, Marcelino and Elly.  They always wanted her late husband’s share of the compound.  In 1975 or 1976, the applicant and her late husband built a house in the family compound.  They did not live there but they visited the compound from time to time.  When she was working in Hong Kong she was told by her children that their father (the applicant’s late husband) owed money to his older brother Clemente and he could not pay the money back.  Clemente wanted to take the house belonging to the applicant and her husband to repay the money owed.  She also claimed that each time she returned to the Philippines from working overseas, she would visit the compound.  Each time she did this, Clemente would beat her and kick her and drag her out from the house. The other two brothers, Marcelino and Elly would watch this.  They threatened to kill her if she continued to go to the compound. She did not report these assaults to the police because her husband’s second eldest brother, Victorino, was the Chief of Police in Pasig.  On her last two visits to the compound in March 2005, she was assaulted and threatened by Clemente, Marcelino and Elly.  Clemente told her he would kill her if she came back.  Since she left her country last in 2005, Clemente and Elly already passed away; Marcelino has moved out of the compound and Victorino is now completely blind.  However, she still fears that she will be harmed as Marcelino is still alive and still visits the compound.

The Director’s decision

4.By a notice of decision dated 22 August 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 would be any real and substantial risk of her being harmed or killed by her brothers-in-law.  Her past behaviours did not suggest that her perceived harm was as imminent and substantial as she asserted.  Furthermore, she did not seek protection when her contract in Hong Kong was terminated in 2006.  Moreover, her problem with her brothers-in-law was localized only while state protection and internal relocation alternatives are available to 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 9 April 2018.

6.By a decision dated 16 May 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 [29-48] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s account of primary facts was accepted by the Board.  It accepted that the applicant had been threatened and assaulted by her brothers-in-law and she has a claim to her late husband’s property in his family compound [28-33];

(2)  however, the applicant’s daughter has taken on the role of negotiating the applicant and her family’s rights to property in the compound.  There are also legal and administrative systems in place in the Philippines through which the applicant and her daughter can seek to settle the property dispute [34];

(3)  in the circumstances, the risk of harm to the applicant if she is returned to the Philippines is one that is remote and insubstantial.  There are no substantial grounds for believing the applicant would face a real risk of being harmed, if refouled [35].

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 19 June 2018 for leave to apply for judicial review of the decision of the Board.  In the Form 86 and supporting affidavit, the applicant did not set out any proper grounds for the relief sought.

11.By a letter attached to her affidavit, she repeated her fear that her life would be in danger because of the land dispute with her brothers-in-law and that she could not provide a document as proof because she had nobody to help her.

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

Discussion

13.The relevantprinciples 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 the applicant’s 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 of the risk of harm, taking into relevant facts into account, including that two of the brothers-in-law had passed away and one is now very old and no longer lives in the compound, and that the property dispute can be resolved by her daughter through the legal and administrative systems in place in the Philippines.

16.As explained above, the assessments of evidence and 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 affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.  Regurgitation of her fear does not constitute a valid ground of review.  The evaluation of the risk that the applicant would face is a case-specific finding entirely within the province of the Board.  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 applicant delayed in lodging the claim for protection after her last contract expired and she had then overstayed in Hong Kong for 9 years before she lodged her claim for protection after she was arrested.  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 only a remote and unreal risk of future harm.  It came nowhere near the level of severity required by law to constitute torture or CIDTP. 

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.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.

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

Disposition

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

Dated 15 April 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