Tumbaga Emelita Basco v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2797/2018

[2021] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2797 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:

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 Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018.

2.The Applicant is a Philippine national.  She had previously worked in Hong Kong as a foreign domestic helper.  She last entered Hong Kong on 31 July 2015 for employment.  After termination of her contract of employment, she departed Hong Kong on 1 January 2017 but re-entered on the same day as a visitor with permission to remain until 15 January 2017.  On 18 January 2017, she surrendered to the Immigration Department.  By written representations dated 12 April and 12 May 2017 she made her non-refoulement protection claims, asserting her fear of being harmed by her creditors.

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 29 November 2017 (the “Notice”), the Director rejected her claims.  On 11 December 2017, she appealed to the Board against the decision of the Director in the Notice.   Her appeal was dismissed by the Board on 19 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 and has four children, now aged between 17 and 26.  In 2007, she decided to come to Hong Kong for work.  Through the introduction of her friend, she borrowed 150,000 pesos at a monthly interest of 10% per month from Mr and Mrs Bubadella (the “Creditors”) to pay the agency fees and education costs of her children.  She started working in Hong Kong and had no problem paying her monthly interest as her employment was stable.  Her problem began in 2013 when her employment contract was prematurely terminated.  She returned home.  Her Creditors demanded repayment.  When she was unable to pay, they became angry. The male Creditor threatened to kill her if she would not repay in full soon.

8.The Applicant resumed work in Hong Kong in August 2015.  At the time, she needed to remit more money to her family for her children’s school fees and parents’ family’s needs.  She was unable to pay interest to the Creditors.  Again, her employment was prematurely terminated in December 2016.  She became an over-stayer since. 

9.The Applicant retained close contact with her family nearly every day.  Her husband told her that the Creditors had come to look for her in December 2015 demanding full repayment of the loan.  When her husband told them that he did not have money to repay, the male Creditor became angry and said he would return for repayment.  They returned a few times afterwards.  When they returned in September 2017, they were extremely angry and demanded repayment in the sum of 400,000 pesos.  To avoid the Creditors, her husband moved to live with the Applicant’s parents. The Applicant did not consider internal relocation a viable option for she is not familiar with other parts of the Philippines and has no relatives and family support elsewhere in the Philippines. 

The finding of the Board

10.The centrepiece of the Applicant’s case is that she incurred a loan of 150,000 pesos to pay the agency fees for obtaining employment for her in Hong Kong and for the education costs for her children which she is unable to repay and which resulted in the death threat from her Creditors.  Having tested her case against her own evidence and credible Country of Origin Information (“COI”), the Board have serious concerns about her credibility.  The Board found her an exaggerating witness who was ready to embellish evidence to support her case.  The Board was not satisfied that her case is inherently credible.

11.The Applicant said she kept $500 from her monthly salary and remitted the rest of her salary home for the family.  Her monthly remittance would be between $3,200 and $3,500 from 2008 to 2016.  On the basis of that evidence, the then exchange rate and the average family income and expenditure according to CY 2009 Family Income and Expenditure Survey of the National Statistics office, the Board found it was impossible that her income was not enough to meet her family expenses and repayment of her loan and interest.  As for her children’s education costs, the Applicant admitted that she only had to pay travelling and other expenses and did not have to pay tuition fees.  The Board has doubt about the extent of her burden for the children’s education costs.  In any event, the costs have reduced by half by 2016.  Then, the Applicant made a first time assertion about medical expenses for her husband’s tuberculosis.  But in answer to the Board’s further questions, she said that the condition was diagnosed 23 years ago but turned worse in 2004.  She had no idea about the costs of treatment by the time this question was asked in 2018.  The Board also doubted her evidence that her two elder children never joined the employment market because they could not afford the entry level pre-requisites.  The Board had raised its concerns about the inherent improbabilities of her evidence with the Applicant, but she was unable to offer any credible explanation.  

12.In the end, the Board found the Applicant was not a credible witness.  It was not satisfied that she had been threatened with harm by anyone in relation to any outstanding debts or otherwise.  The Board found that the Applicant would not face any real chance of harm of any kind for any of the reasons she claimed in the reasonably foreseeable future, if returned to the Philippines.  On the basis of this finding of fact, the Board was not satisfied that the Applicant has discharged the burden of proving her entitlement to protection under any of the four applicable grounds and hence dismissed her appeal. 

The ground of application and disposition    

13.In her affidavit filed in support of her application, the Applicant said that she is “not satisfied with the decision of immigration” and asserted that “(her) life is still in danger in (her) country”.  She did not advance any specific grounds for her application.  The Court treated her complaint is actually directed against the finding of facts by the Board.

14.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].

15.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; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board considered her evidence carefully, fairly raised its concerns about the inherent plausibility of her evidence with the Applicant and sought explanation.  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 fact which is within the province of the Board as the fact finding tribunal to make.  The Decision of the Board was utterly without fault. 

16.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 refused her application for leave to apply for judicial review.

Dated the 12^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)