Fernandez Lanie Marinez and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 73/2019 on BabelCite. This High Court CFI judgment.
1. This is the Applicants’ 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 28 December 2018 (the “Decision”).
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HCAL 73/2019 [2023] HKCFI 2382 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 73 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To: Leave to apply for Judicial Review refused. Observations for the Applicant: Introduction 1.This is the Applicants’ 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 28 December 2018 (the “Decision”). 2.The 1st and 2nd Applicants are Philippine nationals, now aged 40 and 9 respectively. As the 2nd Applicant is a minor, the 1st Applicant who represented her had been advised by letter of this Court dated 14 January 2022 to seek legal representation whether by the Duty Lawyer Service or private solicitors. They did not respond. To the Court’s knowledge, they had applied for legal aid but their application was refused. They had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered their application may be justly determined on paper without an oral hearing. 3.The 1st Applicant entered Hong Kong to work as a foreign domestic helper in 2008. She overstayed in Hong Kong after her employment was terminated. She made a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). Her Torture Claim was rejected by the Director of Immigration (the “Director”) on 13 January 2012. She did not petition against that decision which therefore became final. On 28 July 2014, she gave birth to her daughter, ie the 2nd Applicant herein. Following the implementation of the Unified Screening Mechanism (“USM”) on 3 March 2014, the 1st Applicant filed a non-refoulement claim on her and the 2nd Applicant’s behalf. 4.The 2nd Applicant’s 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]. As the decision relating to the 1st Applicant’s Torture Claim is final and binding on her, her non-refoulement claim was assessed on the above grounds other than the Torture Risk ground. By a Notice of Decision dated 7 March 2018 (the “Notice”), the Director rejected their claims. Their appeal against the Notice was dismissed by the Decision of the Board on 28 December 2018. The Applicants’ case 5.The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the basis of the Applicants’ claim is their fear of being harmed by the 1st Applicant’s mother’s friend, Bonis, for being unable to repay a loan owed to her; their fear of being harmed by the 1st Applicant’s ex-boyfriend, Nick, for having broken her relationship with him; and their fear of discrimination as the 2nd Applicant was born outside of wedlock. 6.The 1st Applicant claimed that prior to taking up employment in Hong Kong, her mother had arranged on her behalf a loan of 80,000 pesos (about HK$14,300) from Bonis to pay the agency fee for processing her employment contract. She was unable to repay the loan as she had to support her family. Since December 2010, Bonis had been visiting her home in the Philippines demanding repayment and threatening something bad would happen to her if she did not pay. The 1st Applicant’s parents were so frightened that they moved to another area to avoid Bonis. 7.The 1st Applicant also feared that Nick will harm her and the 2nd Applicant for breaking up with him prior to her leaving for Hong Kong as he did not accept the termination of their relationship. 8.The 1st Applicant does not believe that she and the 2nd Applicant would be able to obtain protection from the Philippine authorities. The finding of the Board 9.The 1st Applicant testified before the Board. The Board found internal inconsistencies in her evidence which defied common sense. She told the immigration officer in her NCF and screening interview that she had been living with Nick for a year before she left the Philippines for Hong Kong. She also told her mother the same. But on the other hand, she had to undergo training at a different town before she could qualify for employment and obtain a visa to Hong Kong. Thus, she and Nick had separated before she left for Hong Kong. Nick never stopped her from leaving him or the Philippines. The Board therefore found it unlikely that Nick would do anything to harm her or her child after they had separated for ten years. 10.The 1st Applicant gave inconsistent explanation for not taking up new employment after her first employment contract was terminated. She told the immigration officer at the screening interview, that she was prevented from taking up employment by the keeper of the boarding house where she was staying for she had not paid rent. But at the oral hearing, she told the Board that she did not take up the employment because she discovered, upon visiting the prospective employer’s home, that she would have no independent accommodation and had to share a room with the employer’s children. The Board considered neither explanation credible in view of her then pressing financial conditions and the threat from Bonis. The Board also dismissed her further explanation that she did not seek alternative employment because she had no money to pay the employment agency for there were many agencies which only charged employers for their services. 11.The Board found the 1st Applicant an exaggerating witness. It found her evidence inherently improbable and incredible. The Director’s finding on the 1st Applicant’s Torture Claim in 2012 is conclusive and binding on the 1st Applicant. In respect of the 2nd Applicant’s Torture Risk claim, the Board, having found the 1st Applicant’s evidence implausible and incredible, found that as Bonis had never harmed or tortured the 1st Applicant’s family members or the 1st Applicant on her return to the Philippines, the threat was only intended to coerce the 1st Applicant to repay and was not intended to be carried out. For reasons as mentioned in Paragraph 9 above, the Board found there was no reason for Nick to harm or torture the 2nd Applicant when his relationship with the 1st Applicant had ended ten years ago. The Board also found on the basis of authoritative and credible country of origin information that the stigma attached to children born outside of wedlock is not what it used to be 50 to 100 years ago and is no longer a cause for concern particularly because most people live in urban areas away from the villages. Accordingly, it found the 1st Applicant had failed to establish that there is a real risk of the 2nd Applicant being subject to torture, punishment or ill-treatment as defined in the Immigration Ordinance on her moving to the Philippines. 12.For the same reasons, the Board found the Applicants’ risk of harm from Bonis and Nick under BOR 3 Risk ground is low, particularly if the Applicants relocate to another part of the Philippines to avoid meeting them. 13.As for the Applicants’ Persecution Risk ground, the Board found for the same reasons that the risk of harm from Bonis and Nick was low, speculative and not well founded. More importantly, the risk, even if it materialises, would not be on account of any of the reasons protected by Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. 14.As for the Applicants’ claim under BOR 2 Risk ground, the Board found that Applicants had failed to provide any evidence or information which could establish a valid claim. 15.Lastly, on the basis of authoritative and credible country of origin information, the Board was satisfied that adequate state protection is available to the Applicants if they are minded to seek such protection. It was only the 1st Applicant and her mother’s choice not to seek protection. It also found internal relocation a feasible option. The Applicants could relocate to other parts of the Philippines including Manila and Quezon city and Pampanga Pangasinan in Luzon. 16.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicants have failed to prove their entitlement to protection under any of the applicable grounds under the USM. Hence, it dismissed their appeal. The legal principles applicable to judicial review 17.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 18.The Applicants did not advance any grounds for judicial review in the Form 86 or in their supporting affirmation. In the 1st Applicant’s supporting affirmation, she only emphasised that she objected to the Decision and that the Board wrongly disregarded her and the 2nd Applicant’s dangerous situation if refouled to the Philippines. 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 Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to the Philippines. Conclusion 19.Having rigorously examined the Notice, 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. The Board found the 1st Applicant who testified on behalf of herself and the 2nd Applicant an exaggerating witness and incredible. It accepted her evidence about the general setting in which the claims arose, such as the loan from Bonis and her threat, but disbelieved the 1st Applicant’s evidence about the threat from Nick. It accepted the evidence from authoritative and credible country of origin information about the absence of discrimination against children born outside of wedlock at least in the cities, and the availability of state protection and internal relocation. It was on that basis that the Board found that the Applicants had failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. All these are finding of fact and of the law. The finding of facts is exclusively within the province of the Board to make, 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. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 20.For the above reasons, leave to apply for judicial review is refused. Dated 20th day of September 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