Mangallay Alicia Labawig v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2871/2018 on BabelCite. This High Court CFI judgment was delivered on 10 February 2023.
1. This is the Applicant’s application by Form 86 filed on 14 December 2018 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 9 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 October 2017 (the “Notice”). In her Form 86, “USM” is named as the proposed respondent a
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HCAL 2871/2018 [2023] HKCFI 362 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2871 of 2018
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 14 December 2018 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 9 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 October 2017 (the “Notice”). In her Form 86, “USM” is named as the proposed respondent and the Board as the interested third party. As she is seeking to apply for leave to apply for judicial review of the Decision of the Board, leave is granted to amend her Form 86 by naming the Board as the proposed respondent and the Director as the interested party. 2.The Applicant is a Philippine national. She had worked as a foreign domestic helper between 1997 and 2014. She last entered Hong Kong on 4 May 2013 for employment and became an over-stayer since 23 June 2014. She was arrested on 5 December 2015 and raised a non-refoulement claim by written signification dated 8 December 2015, relying on violence and threat of death by her husband. Her husband died in 2016. In 2017 she filed a non-refoulement claim form (“NCF”) relying on a new allegation of death threat from her husband’s siblings. In due course, her 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]. Her claim was rejected by the Director’s Notice. 3.The Applicant appealed to the Board against the decision of the Director in the Notice. Her appeal was dismissed by the Board’s Decision. On 14 December 2018, 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, the issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing. The Applicant’s case 4.The following account of the Applicant’s case is mainly based on the information in the NCF 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 the siblings of her late husband upon her return to the Philippines because they blame her for his death. 5.The Applicant was born in Ilocos Sur, the Philippines, now aged 63. She has six brothers and two sisters, but two of them died in 1983 and 2017. She was married with four children. She received ten years of education and has many years of working experience as a domestic helper in the Philippines, Singapore and Hong Kong. 6.She married her late husband in around 1980. Her husband started drinking and abusing drugs in the 1990’s. He neglected their children, attacked the Applicant and attempted to rape her. She remitted her salaries to him for their children but he squandered them on alcohol and drugs instead. 7.One day in around 2016, the Applicant received a text message from her husband’s sister-in-law, Grace, asking the Applicant to call her. She called Grace and learnt that her husband had passed away five days ago due to years of drug and alcohol abuse. All seven siblings of her late husband were present and they spoke to her through speaker-phone. They claimed that her husband would have survived if the Applicant had stayed with him in the Philippines and taken care of him. The Applicant replied them that she had remitted most of her salaries to her husband. She was distraught and hanged up. 8.About four days later, upon receiving Grace’s text message, the Applicant called Grace. She was put on the speaker-phone. Her husband’s siblings told her not to show her face in the Philippines or she would die. She told them not to worry, as she would return to the Philippines as a dead body if Hong Kong does not allow her to stay. She said that two of her husband’s siblings (Herman and Antonio) were affiliated to the New People’s Army (“NPA”). The NPA was a rebel group and had been categorized as a terrorist group in many countries. She believed that her husband’s family might hire someone to kill her if she returns to the Philippines. 9.She did not believe the Philippine police would protect her, as the police is corrupt. She heard from others that the police just ignored reports by citizens. She did not believe internal relocation feasible. She had no one but her mother to turn to. As her mother lives not far from her husband’s family, it would not be safe for her to live with her mother. Further, her husband’s family can hire someone to find her and kill her if she returns to the Philippines. The finding of the Board 10.The Applicant testified before the Board. The Board found her testimony contradicted the evidence in her NCF in many significant respects. She testified that she had not spoken to anyone in the Philippines since 2013, but she said in the NCF that she had phone calls with her husband’s family in 2016. In the NCF, she said that her husband’s siblings blamed her for her husband’s death but in her testimony, she said that her own family members including her children also blamed her for his death. 11.She also gave an inconsistent account of how she came to know about her husband’s death. In the NCF, she said that she learnt of his death from the call with Grace and her husband’s siblings. In her testimony, she said that she heard about his death from an acquaintance in Hong Kong called Mercedes and then she phoned her son. She made no mention of any phone call with Grace. She explained that she first called her brother who briefly asked her to return to the Philippines and terminated the call and then she called her son. The Board found her alleged conversation with her son lacking in details. It did not accept her explanation for her inconsistent evidence as to whom she first called about her husband’s death. 12.More importantly, the Applicant had said unequivocally that she had not communicated with her husband’s family about his death, particularly not with Grace. But when asked to explain how she learned about the threats she would face on her return to the Philippines, she testified that she learned from Grace that her husband’s siblings wanted her to “repay” for her husband’s death. That was wholly different from the account given in the NCF where she said her husband’s siblings gave her the threat directly on speaker-phone. When confronted with the inconsistencies, she explained that her testimony before the Board was about her conversation with her son and brother while the account in the NCF was about what Grace told her on the day of her husband’s funeral. The Board could not accept her explanation because of the context in which the two accounts were given. 13.The Board also noted from the Applicant’s testimony that her brother appeared to be protective of her but she said that her family also blamed her for her husband’s death. She was unable to offer any response. 14.The Board accepted that the Applicant was married to her husband who was abusive towards her from time-to-time; that she spent many years working abroad as a foreign domestic helper to give the family in the Philippines a better life; and that she remitted most of her earnings to her family, including her husband. These findings and the above cumulative discrepancies made it difficult for the Board to accept that anyone in the Applicant’s own family or her husband’s family would blame the Applicant for her husband’s death to the point of wanting to inflict harm on her in revenge. The Applicant’s explanation was that animosity developed since 2014 when she stopped sending her family money because she had lost her job. The Board rejected that explanation and made the above finding. 15.As the Board had rejected the Applicant’s evidence about the threat from her husband’s siblings, it found that the Applicant had failed to establish that she would be subjected to any of the proscribed risks of harm upon her return to the Philippines. For the above reasons, the Board dismissed her appeal against the Notice. The applicable legal principle 16.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 of application 17.The Applicant did not advance any grounds for judicial review in her Form 86. In her supporting affirmation, she annexed a copy the Decision and the hearing bundle for use in the appeal hearing before the Board. Absent any particular grounds for application, the court could only focus on the usual criticisms raised in judicial reviews such as errors of law, procedural unfairness or irrationality in the Decision. Discussion and conclusion 18.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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. For reasons as given by the Board, the Board found the Applicant not credible and rejected her evidence about the threat of death from her late husband’s siblings, which is the centrepiece 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. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Court could detect no error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. 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 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused. Dated the 10th day of February 2023
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 [14(1)] |
Cases cited in this judgment