Caling Analiza Limon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2795/2018

[2021] HKCFI 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2795 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 To:

1.   Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision (the “Decision”) of the Immigration Department dated 30 November 2018.  Neither the Immigration Department nor the Director of Immigration (the “Director”) had made any decision dated 30 November 2018 regarding the Applicant.  The decision mentioned by the Applicant is in fact a decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”).  Accordingly, the Court granted her leave to amend her application by substituting the Board for the Immigration Department.

2.The Applicant is a Philippine national.  She last entered Hong Kong on 7 January 2016 to take up employment.  On 2 February 2016, she applied for extension of stay and was permitted to remain as a visitor until 1 March 2016.  She overstayed thereafter.  On 20 April 2016, she surrendered to the Immigration Department.  By written representations dated 1, 22 and 26 August 2016 she made her non-refoulement protection claim, asserting fear of being harmed by her husband.

3.In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].

4.By a Notice of Decision dated 23 February 2018 (the “Notice”), the Director rejected her claims.  On 7 March 2018, she appealed to the Board against the decision of the Director in the Notice.   Her appeal was dismissed by the Board on 30 November 2018.  On 7 December 2018, she applied for leave to apply for judicial review of the Decision of the Board.

5.The Applicant did not request an oral hearing. Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing. 

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form prepared by her with assistance of the Duty Lawyer Service and her record of her screening interview.

7.The Applicant was married to her husband on 27 April 1992.  Her husband worked in the Philippine army. They have a son.  Her relationship with her husband used to be harmonious until sometime in 2000 after her husband had a traffic accident killing five people.  Her husband lost interest in work and developed negative behaviours such as drinking and womanizing.  He often demanded money from her.  They quarrelled as often as two to three times a week.  Her husband also assaulted her with bare hands or kicked her with his legs.  He also had a mistress. 

8.In August 2008, the Applicant came to work in Hong Kong as a foreign domestic helper to avoid her husband.  She remitted money to her mother for her and her son’s living expenses.  She returned home during her vacations.  Her husband kept demanding money from her.

9.One day in August 2015, the Applicant had a quarrel with her husband and expressed her wish to divorce him.  Their argument became heated.  Her husband pointed a gun at her head and told her to be quiet and mind her own business.  He slapped her on her face several times and threatened he could kill her anytime. 

10.After the incident, the Applicant made a report to the village chief against her husband.  Her husband was summonsed before the village council.  He was told by the village chief not to mistreat the Applicant and their son again.  Her husband agreed.  But the Applicant believed he did not mean it and was afraid that he would hold a grudge against her for reporting against him. 

11.The Applicant returned to Hong Kong to work.  She was informed by her mother that her husband is often at their home and always asked her mother when she would return to the Philippines.  He had not done anything to their son.  She believed that he would assault her and her son upon her return.

The finding of the Board

12.The Board found multiple significant inconsistencies and omissions in the Applicant’s evidence which led to concerns about her credibility.  The Board considered her oral evidence regarding the claimed domestic violence, the timing of her husband’s dismissal from the army, his possession of a gun and how he supported himself after 2000 is vague, general, hesitant and inconsistent.  The Board attempted to clarify the inconsistencies and ambiguities in her evidence with the Applicant, but was not satisfied with her explanation.  The Board devoted eleven pages to analyse her evidence.  The Board accepted much of the factual background asserted by the Applicant, including her husband’s dismissal from the army, his keeping a mistress, their matrimonial discord, her husband’s demand for money, and her nagging, complaining and scolding at her husband.  However, it did not accept her bare assertion that she suffered physical violence from her husband.  In particular, the Board did not accept her husband had ever pointed a gun at her or assaulted her as claimed, that she had complained to the village chief, that she had been beaten consistently or had constantly gone through physical, psychological and emotional threats.  The Board did not accept her husband was violent towards their son.  The Board noted that for over three years since the August 2015 incident there was no direct contact between the husband and the Applicant, which suggested that the husband had no interest in maintaining contact with the Applicant for any reasons.

13.The Board concluded that the Applicant’s husband has no ongoing adverse interest in the Applicant. Hence the risk of her facing threat, violence or other forms of harm from her husband is remote.  The Board did not accept there is any real risk of her facing threat, violence or harm upon her return to the Philippines.  The Board also found there is nothing to indicate the alleged mistreatment was inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting or purported to act in an official capacity. Nor is there any credible evidence to indicate that the authorities consented, condoned, tolerated or knew or ought to have known about the alleged mistreatment.

14.The Applicant bears the burden of proving her case of fear of harm and risk.  Having failed to discharge her burden of proof, there is no factual basis to support her claims for non-refoulement protection under any applicable grounds.

The grounds of application    

15.The Applicant sought to review the Decision but did not advance any specific grounds for her application.  She complained that the Immigration Department (referring to the Board) disregarded her dangerous situation.  Her complaint is actually against the finding of facts by the Board.

16.The role of the court in judicial review is not to re-assess the non-refoulement claim 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  For reasons as given by the Board, it did not accept the evidence of the Applicant regarding her fears and risks.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  That is a finding of facts which is within the province of the Board as the fact finding tribunal to make.  The Decision of the Board was utterly without fault. 

Conclusion

18.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable. The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, the Court granted leave to amend her application by substituting the Board for the Immigration Department but refused her application for judicial review.

Dated the 11^th day of May 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

[1]  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

[2]  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  [2018] HKCA 524 at para 14(1)