Vila Ma Anthea Lagat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2838/2018

[2021] HKCFI 2156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2838 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 (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2018 (the “Decision”).

2.The Applicant is a Philippines national.  She came to Hong Kong to take up employment as a foreign domestic helper.  She was last permitted to remain until 18 July 2016, but she over-stayed thereafter.  She surrendered to the Immigration Department on 5 September 2016.  Then she made non-refoulement claims by way of written significations dated 10, 23 and 25 January 2017.  She gave birth to a son on 15 February 2017.  On 11 April 2017, she also made claims on behalf of her son.

3.In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 7 September 2017 (“the Notice”), the Director of Immigration (the “Director”) rejected their claims under all four applicable grounds.  She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Decision of the Board dated 8 November 2018.  She now sought leave to apply for judicial review of the Decision.

4.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

5.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service. 

6.The Applicant obtained a Bachelor of Science degree in Nursing in 2008 and completed a certificate in hotel and restaurant management in Laoag City in 2012.  She worked as house keeper in a hotel in Pagudud in the Philippines from 2012 to 2013 before she came to work as a foreign domestic helper in Hong Kong.

7.She married her husband in the Philippines in 2009 and had a son in the same year.  She said in around October 2009, her husband became an alcoholic and assaulted her when she argued with him about his drinking habit.  She Applicant found drugs in her husband’s bag in 2010.  Since then and until 2013, her husband beat her around 20 times. He threatened to harm or even kill her and their son if she went to the police. She did not report the assault to the police because she thought it was just some family matters or disputes.

8.The Applicant went to work in Hong Kong in August 2013.  Her husband kept calling her to remit more money to him, but she refused.  Her husband threatened to harm her if he saw her again in the Philippines.  She changed her telephone number in 2015 and did not have contact with her husband for some time since then.

9.In July 2015, the Appellant met a Nepalese national with Hong Kong residence and became pregnant with their child.  In November 2016, her husband called her and said that he had known she was pregnant and he would kill her and her baby whenever he saw them in the Philippines.  The Applicant changed her telephone number and never heard from him again. 

10.The Applicant said her life was in danger, if refouled back to the Philippines.  She said she could not relocate to anywhere in the Philippines because her husband has a large network of relatives and friends in positions of authority and would find her wherever she went. 

The finding of the Board

11.Notwithstanding the Board had some concerns about her credibility, it proceeded to assess her claims on the basis that her claims regarding her problems with her husband are credible.  But the Board did not accept her claims that her husband would be able to locate her wherever she went in the Philippines as she had not advanced any credible basis for that assertion.  Though she asserted that her husband had a network of friends and relatives in Manila and an uncle who is a mayor in Pasuguin, she was unable to explain how these matters, even if true, would enable her husband to locate her wherever she went in the country.

12.The Board accepted the Applicant’s assertion about domestic violence by her husband and that if she returned to Pasuquin where her husband continues to live she may face a threat of violence from him.  The Board accepted that her family is unaware of her problem.  However, it noted that the Applicant had made no attempt to seek assistance either from her family or the state or community authorities in the Philippines to protect her from her husband.  The Board noted that she made no claim that her husband had been violent towards their son, although she claimed that he had threatened the child in the past.

13.The Board held that if state protection is not available for the Applicant, it would not be unreasonable to require her to relocate elsewhere in the Philippines to avoid any threat of harm posed by her husband.  The Applicant is a person who had lived and worked in a number of cities in the Philippines and in Hong Kong. She had training as a nurse and qualifications and work experience in the hospitality industry.  Hence, the Board did not accept the Applicant’s claim of harm by her husband should she return to the Philippines as she can avoid any actual risk by relocating either to Manila or to Quezon City.  The Board was therefore not satisfied that the Applicant has established that there are substantial grounds which support the conclusion that she will face a real risk of ill-treatment as claimed if she returns to the Philippines.

14.In addition, the Board found that the Applicant’s feared harm did not meet the specific criteria required under the four applicable grounds under the USM.  Very briefly, in respect of Persecution Risk ground, the Applicant must prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”).  On the Applicant’s case, the reason for her persecution arose out of domestic violence by her husband and not for any of the Convention reasons.  Her claim falls outside this ground.

15.In respect of BOR 2 Risk ground, for reasons as explained above the Board did not accept the Applicant’s claim that she faces a real risk that her right to life would be violated by her husband.

16.In respect BOR 3 Risk ground, the Board found that the Applicant’s risk could be avoid by internal relocation.

17.In respect of the Torture Risk ground, the Board held that for reasons as explained above the evidence did not support a claim that there are substantial grounds for believing that the Applicant would be in danger of being subjected to torture.

Grounds of application

18.In her supporting affirmation, the Applicant sought to reverse the Decision because of the threat on her life from her husband if she returned to the Philippines.  She said she did not want to return because she has a son to look after in Hong Kong so that his father could go to work.  She annexed a supporting letter from her Nepalese partner to the effect that their son is not accepted by his family and he needed the Applicant to stay in Hong Kong to look after his son.

19.The Board’s Decision was reached on the basis of the Applicant’s evidence that her husband had threatened to harm or kill her and her son born with her Nepalese partner.  The Board even assumed for her benefit that state protection was not effective.  What the Board did not accept was the Applicant’s assertion that her husband had a wide network to locate her anywhere in the Philippines and that the threat could not be avoided by internal relocation.   The Board found she had failed to prove how her husband’s relations could help him to locate her anywhere in the Philippines and why, given her qualification and experience, it would not be reasonable to expect her to relocate herself to avoid the harm.

20.The Applicant sought to rely on her son and her Nepalese partner to support her non-refoulement claims.  Her Nepalese partner may need the Applicant to look after their son to enable him to work.  The three of them may need each other.  But that is not a recognized ground under any of the applicable grounds under the USM.    It may be a ground for extension of the Applicant’s permission to stay.  Those considerations are outside the scope of judicial review.  Besides, her Nepalese partner, being a Hong Kong resident, could obtain welfare assistance for the maintenance of his son.

21.The Applicant is complaining against the result of the Decision and not its propriety.  There is no complaint about procedural unfairness, unreasonableness or irrationality in the Decision.  In reality, she is complaining against the finding of fact of the Board.  Specifically, she is complaining against the Board’s rejection of her evidence that her husband could locate her with his network and the finding that it would not be unreasonable to require her to relocate herself to avoid the harm.

22.The function of the court in judicial review is not to re-assess the non-refoulement claims 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5]. Thus, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.

23.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.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There are no such vitiating elements in the Decision.  The Decision is utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

24.For the above reasons, leave to apply for judicial review was refused.

Dated 30^th day of July 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)