Pascaran Madonna Pasion v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1024/2019

[2022] HKCFI 2089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1024 of 2019

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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 April 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 22 November 2017 (the “Notice”).

2.The Applicant is a national of the Philippines, now aged 37. She entered Hong Kong on 19 July 2016 as a visitor from Lo Wu and was permitted to remain until 2 August 2016.  She overstayed and then surrendered to the authorities on 29 November 2016.  On 11 January 2017, she raised a non-refoulement claim.

3.In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 22 November 2017, the Director rejected her claims under all four applicable grounds.

4.She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board’s Decision dated 8 April 2019.  On 15 April 2019, she applied for leave to apply for judicial review of that Decision.  She did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application 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 the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, she claimed that she would be harmed by her previous partners, Mhelkee and Mark, or the Filipino police, if refouled.

6.The Applicant was born in Isabela, the Philippines.  She is single and has three sons.  Her family resides in the Philippines.  In May 2015 to July 2016, she worked in Hong Kong as a foreign domestic helper.

7.The Applicant cohabited with Mhelkee who is a bodyguard of a congressman from 2001 to 2012.  During that cohabitation, she had an affair with another man known as Forto and she bore Forto a son in August 2011.  Mhelkee suspected he was not the father of that son and began assaulting the Applicant about once a week.  He made cigarette burns on her wrist, arm and inner thigh.

8.Mhelkee’s suspicion was confirmed in March 2012 when he heard of the affair between Forto and the Applicant through Forto’s friend.  Mhelkee’s abuse intensified and he threatened to kill the Applicant.

9.One day in around November 2012, Mhelkee returned home drunk and attacked the Applicant with his bare hands.  He threw a glass bottle at her feet causing a wound in her foot. Upon seeing her wound, Mhelkee left.  The Applicant smelt kerosene and suspected Mhelkee contemplated burning down the house. 

10.The Applicant received four to five stitches for her foot.  She fled to her father’s house to avoid Mhelkee afterwards.  She reported Mhelkee’s assault to the police but the police told her that they could not take actions as it was a personal dispute.

11.The Applicant fled to Manila in around late November 2012.  She learnt that Mhelkee had been to her family’s home a few times to verbally harass her family members.  He asked her family for her whereabouts and threatened to kill her for cheating on him.  The Applicant went to Qatar to work as a domestic helper in around February 2013. Mhelkee became furious and told her family that he would kill her upon her return.

12.Later, Mhelkee pleaded with the Applicant for her return and she agreed.  They started living together in around February 2014.  However, Mhelkee resumed his abusive behaviours soon after.  In around late February 2014, he took out a gun and threatened to kill her.  The Applicant fled to Manila and then took up employment in the United Arab Emirates in May 2014.  

13.After returning from the United Arab Emirates in September 2014, she lived with her sister at Pampanga.  She met Mark and began having intimate relationships with him.   Mark was a drug dealer and a married man.  She trafficked in drugs for Mark.  When she broke up with Mark in around April 2015, Mark assaulted her with bare hands. She suffered minor bruises which took her a week to recover.  She had no further contact with Mark since then.

14.The Applicant went to Hong Kong to work as a foreign domestic helper on 27 May 2015.  In around November 2015, Mark called her and told her that he would turn her in for trafficking in drugs.  That was the only call from Mark.  The Applicant later found out in around 2016 that a Facebook account had been opened in her maiden name to which her photos and messages with Mark were uploaded.

15.The Applicant learned from her mother on 15 November 2017 that Mhelkee was still looking for her in her family home and threatening to kill her.  She was worried that Mhelkee could find out her whereabouts through the congressman, if she returned to the Philippines.  She was also concerned that Mark might have given her name to the authorities in the Philippines and that she would be killed by the Filipino police because of the ongoing drug war.  She claimed that many criminals and addicts were shot dead by the police.

The finding of the Board

16.The Board considered the Applicant’s evidence consistent with the bulk of her case and accepted her case as she asserted, except her belief that Mark had reported her drug trafficking activity to the authorities.  It held that as a drug dealer himself, Mark would not ordinarily volunteer such information to the authorities.  Further, her family, friends and herself had not been approached by the authorities.

17.In terms of torture risk, the Board did not accept that Mhelkee or Mark were state actors. Although Mhelkee worked as a bodyguard for a congressman, there was no evidence that he (or Mark for that matter) would be able to influence the authorities in the Philippines or to cause the authorities to acquiesce in harming her. Hence, the Board found that the ill-treatment the Applicant received in the past or would likely receive in the future would not fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance to entitle her to protection under Torture Risk ground.  Furthermore, the Board also found on the basis of credible Country of Origin Information (“COI”) that a functioning system of law and order exists in the Philippines.  The police force and justice system are reasonably effective and impartial and the authority take reasonable measures to protect lives and safety of its citizens.  Hence, the Board found that state protection is available and rejected the Applicant’s allegation that Mhelkee would be able to influence the police generally to withhold protection from her.

18.As for BOR 3 risk, the Board accepted that the Applicant had suffered ill-treatments from Mhelkee and Mark in the past and that she would have a small but real risk of harm from either of them upon her return.  However, she can mitigate that risk by internal relocation to Manila or Cebu.  As a resourceful person of some thirty years old, it would not be unreasonable to expect her to relocate internally.  Although Mhelkee and Mark may have some resources available to locate her in their local areas, neither of them is likely to have much influence outside their local areas.  The Board rejected the Applicant’s claim that Mhelkee or Mark has the connection and ability to locate her anywhere in the Philippines.  It also doubted if they would have any incentive to locate her after years of lack of contact.  Hence, the Board found that there are no substantial grounds to believe that the Applicant would face a real risk of being subjected to CIDTP, if she returns to the Philippines.

19.As for Persecution Risk, the Board noted that the Applicant’s disputes with Mhelkee and Mark were private in nature and did not arise out of her race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of 1951 Convention relating to the status of Refugees and its 1967 Protocol.

20.For reasons given above, the Board did not accept that the Applicant would be at risk of being deprived of her life from Mhelkee or Mark upon her return to the Philippines.  In addition, the evidence and information before the Board does not indicate or suggest that the humanitarian conditions in the Philippines are so dire as to render refoulement a violation of life.  Hence, the Applicant will not be subject to BOR 2(i) Risk on her return to the Philippines.  And as she is not facing any criminal charge punishable by death, BOR 2(ii) to (vi) Risk is not engaged. 

21.For the above reasons, the Board found the Applicant is not entitled to protection under any of the four applicable grounds under the USM and dismissed her appeal against the Notice.

Legal principles applicable to judicial review

22.The role 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.  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].

Grounds for judicial review

23.The Applicant did not give any specific grounds for judicial review in her Form 86 or in her supporting affirmation.  She had been invited by the Court via its letter dated 4 March 2022 to advise the Court of her first language and to file submissions.  She did not respond.  The letter was sent to her at her address as stated in her supporting affirmation dated 15 April 2019.  It has not been returned through the post.  There was nothing to suggest the Applicant had moved or has not received the letter.

24.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to the Philippines.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

25.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; correctly identified the issues and observed a very high standard of fairness.  Except for her speculation that Mark had reported her trafficking activities to the authority, the Board assessed the Applicants’ claim on the basis of the case as she asserted.  It found on the basis of credible COI and its further finding of fact that she had failed to prove the factual basis to support of her claim.  It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  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.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

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

Dated 13^th day of July 2022.

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)