Vicente Sheryll Seva v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1533/2019

[2023] HKCFI 3088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1533 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:

Introduction

1.This is the Applicant’s application by Form 86 filed on 4 June 2019 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 30 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 November 2018 (the “Notice”).

2.The Applicant 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 her application may be justly determined on paper without an oral hearing.

3.The Applicant is a Philippine national, now aged 37. She first entered Hong Kong to work as a foreign domestic helper on 17 August 2010. Her employment contract was prematurely terminated in October 2010. Then, she left Hong Kong for the Mainland and returned to take up new employment. After two such trips and changes of employment, her last contract was again prematurely terminated on 4 May 2012. She departed Hong Kong for Macau on 10 July 2012 and entered Hong Kong on 27 July 2012 as a visitor. She was given permission to remain until 3 August 2012. She overstayed and, about five years later, surrendered to the authorities on 26 July 2017. On 13 June 2018, she raised a non-refoulement claim.

4.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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

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 (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed, if refouled, she would be harmed or killed by her husband who is a member of the New People’s Army (“NPA”).

6.The Applicant was born in Sultan Kudarat, the Philippines. She received ten years of education. She is a Catholic from a Catholic family. In September 2006, under a family arrangement, she married her husband who is a Muslim. They had two children. Her husband is a jealous person and often beat her when he was drunk.

7.One day in November 2006, while she was pregnant, her husband beat her and slapped her. She suffered bruises and scratches and it took her several months to recover. Between November 2006 and February 2010, he attacked her about two or three times a week. He raped her in May 2008 despite her resistance. When the Applicant asked for a separation, her husband pointed both a pistol and a rifle at her, threatening to kill her, her parents and their children. Since then, her husband pointed a gun at her for about thrice a week.

8.One day in January 2010, as the Applicant was about to leave with her two children, she was caught by her husband. Her husband took away the children and her belongings. Then he beat her and threatened to shoot her if he saw her again.

9.In February 2010, the Applicant went to Manila to attend a training course for employment as a foreign domestic helper. In August 2010, she left the Philippines to take up employment in Hong Kong. Even after her departure, her husband continued to harass her parents’ family and made threats to her through her mother. Her mother told her in around October 2018 that her husband still expressed his intention to kill her.

10.The Applicant said she did not divorce her husband because of her Catholic faith. She said she could not avoid her husband by relocating within the country because he can find her through his NPA’s network. She does not believe state protection adequate as she was aware of a case in which the local police had failed to protect the female victim of domestic violence. In addition, as she lived in a remote area, she was required to seek help from the village chief first before making a case to the police in the city. She is also in fear of retaliation on her children and her parents’ family, if she made a report.

The finding of the Board

11.The Applicant testified before the Board. The Board found her evidence kept evolving in the course of her testimony. She gave a version of events as to the circumstances of her going to and staying in the employment agency in Manila which is different from that she gave in her NCF and screening interview. She gave evasive and unconvincing answers as to how she survived for the seven years in Hong Kong without employment. She gave inconsistent answers as to why she sued her employment agency in 2012 which was the ground she gave to the Immigration Department for her application for extension of her stay in Hong Kong. There are many other such problematic evidence. But more significant are the following.

12.When asked why she did not immediately surrender to the authorities when she became an overstayer in 2012 and why she did not make any claim for protection until 2017, she put the blame on the Immigration Department for never giving her such an advice. The Board did not accept that as a reasonable explanation and considered her failure to promptly seek protection as a factor damaging her credibility.

13.The Board found her evidence that she married a Muslim man under an arrangement between a clearly devout Catholic family and a Muslim family; and her allowing their children to become Muslims inherently improbable. Her first response was she did not know why. Then, she added that she heard about her parents had borrowed money from her husband’s family, but she never asked her parents about it. The Applicant vaguely suggested that she believed her family had borrowed money from her husband’s family many times and used her to repay the debt, saying “that is the practice”.

14.Her evidence about the religious component of their marriage ceremony was vague. She had difficulties identifying anything specifically Muslim about the ceremony. She was also unable to describe how her husband practised Islam religion in his daily life. The Board found her evidence on this issue “was, at best, general and simplistic and did not reveal…an intimate understand[ing] of daily Islamic practices which might be expected from a woman who shared her daily married life with a Muslim man for around four years”.

15.The Applicant’s belief of her husband’s connection with NPA was founded on her husband’s locked box containing several mobile phones, wiring and guns. When asked how she knew what those items were for or that they were linked to NPA rather than any other movements, she replied that she did not know. But when the Board remarked that those items did not by themselves link her husband to the NPA, she responded by adding that she heard her husband was with the NPA. When asked from whom she heard that, she said she overheard men in her house talking about planting a bomb. The Board considered she was making up her evidence as she went along.

16.Her evidence kept evolving during the course of the hearing and in response to the Board’s questions which indicated her readiness to modify her evidence to suit the Board’s questioning and that she was not a reliable witness. The Board found multiple significant anomalies in her evidence which led the Board to the conclusion that the central aspects of her circumstances are not as she claimed. The Board rejected her evidence about the central aspects of her case, namely that she ever married a Muslim man, whether by choice or by family arrangement; and that she had been a victim of violence from her husband as she claimed, or that she had been repeatedly threatened with harm, including at gun point by her husband. It did not accept that the Applicant was in the past or will in the reasonably foreseeable future, be threatened, harmed or killed by her husband, his family or his networks and that her husband had or has any links to the NPA.

17.Having dismissed the only ground for claiming protection, namely the alleged threats from her husband, the Board found she had failed to establish the factual basis that she would be subject to any of the proscribed risks of harm upon her return to the Philippines. Hence, it dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

18.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].

Grounds for judicial review

19.The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she said she “would like to reject and aside the decision made by Immigration Department they disregard the danger and threats I face in my country shold (sic) I be deported…”. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face any real harm or real risk of harm if returned to the Philippines. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, 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.

Discussion

20.Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, 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 and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claim is founded on her fear of harm by her husband and their cadres. The Decision of the Board was based on its assessment of the Applicant’s credibility and her risk of harm. The Board had carefully weighed the evidence and assessed her credibility. It found her incredible. It gave detailed reasons for its finding. As the Applicant bears the burden of prove of her claims, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

21.The Board’s Decision is a finding of fact which is 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. There were no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. It is not irrational. Having considered her grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review is refused.

Dated 7^th day of December 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