Nakagawa Nancy Tiro v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 772/2021

[2024] HKCFI 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 772 of 2021

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 26 May 2021 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 27 April 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 February 2021 (the “Notice”). 

2.The Applicant is a Philippine national.  She was arrested on 27 September 2020 and subsequently convicted and sentenced to imprisonment for making a false representation to an Immigration Assistant and furnishing false particulars to a registration officer.  On 22 October 2020, she raised a non-refoulement claim.  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

3.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, ill-treated or even killed by a Filipino woman (“HS”) for having disclosed HS’s personal details to the authorities in Hong Kong in the course of their investigation of the Applicant in relation to the offences of which she was convicted.

4.The Applicant, now aged 44, was born in Cebu City, the Philippines.  She completed her high school education in 1996 and studied for a diploma, which she did not complete.  She later obtained a caregiver certificate in mid-2007.  She has a total of 11 years' work experience, including roles as a promodiser in Cebu from 1999 to 2002, an entertainer in Japan from 2002 to 2006, and running an online business selling second-hand items from 2014 to 2020.

5.She planned to stay in Hong Kong otherwise than as a visitor so that she may stay longer for the purpose of purchasing products for her business.  She approached a Hong Kong-based employment agency (“YETC”) and contacted HS who was the person-in-charge.  HS agreed to arrange a false employment contract for her so as to enable her to stay in Hong Kong for two years under the false pretence of working as a foreign domestic helper for a fee of approximately 290,000 Pesos (equivalent to about HK$45,000).  The Applicant entered Hong Kong in November 2019 under the said arrangement, and obtained a Hong Kong identity card.  She never worked as a foreign domestic helper.  She lived in Wanchai with a friend and operated her online business.

6.In around May 2020, HS forced the Applicant to sign a letter of termination in respect of the false employment contract, under a threat that she would be jailed if she refused.  The Applicant reluctantly signed and HS promised not to forward the letter to the Immigration Department. HS also asked her to change her mobile phone and to delete all their Whatsapp messages.  In around August 2020, HS told the Applicant not to tell the police about her name, the payment of HK$45,000 and not to answer their questions, if she was caught.

7.The Applicant was subsequently investigated about the false employment contract.  She told the authorities everything about HS, YETC and the false employment contract.  She now fears reprisals from HS who was rich, powerful, and well-connected.  She claimed that HS could hire a contract killer to kill her in the Philippines, if she returned.

8.The Applicant does not believe the Philippine police would assist her without a bribe, which she cannot afford.  She claims that the official complaint channels against police are ineffective due to the prevalence of bribery and that internal relocation in the Philippines is not viable as HS could locate her through connections.  It would also be too mentally stressful to live in hiding from HS.

The finding of the Board

9.The Applicant testified before the Board.  The Board evaluated her claim on the basis of the case as she asserted together with the new allegations in her testimony before the Board, such as that HS had threatened to cause her trouble if she reported HS to the police, not just to remain silent about HS and the payment as she had told the Director in her NCF.

10.The Board noted that the Applicant had never suffered any harm from HS.  It found her alleged fears are based almost entirely on speculation and conjecture and did not stem from any past aggression.  There was nothing to support her claim that HS was rich, powerful or well-connected.  Further, when she pleaded guilty to the immigration charges in open court, there was no mention about her giving information about HS or YETC to the authorities.  She also accepted that she has to date not mentioned everything about HS to the authorities, including details of the Whatsapp messages, HS’s requests to delete them and HS’s request to sign the letter of termination.  The Board found it was pure speculation on the Applicant’s part that HS knew she had given assistance to the authorities and hence was motivated to harm her.

11.The Applicant told the Board that she believed HS had moved to Canada.  Hence, the Board held it was doubtful whether HS would suffer any consequences in the Philippines and Hong Kong in connection with the false employment contract or would be motivated to harm her.

12.On the basis of authoritative and credible country of origin information (“COI”), the Board found that despite problems about corruption and ineffectiveness of the Philippine police force, the Philippine government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.  The Applicant may also seek help from other branches of government such as the National Bureau of Investigation or the Philippine Commission on Women for help if the police failed to protect help her.  It is therefore satisfied that state protection of an adequate standard is available to prevent or negate the risk and harm from HS.

13.Given her age and working experience, the Board considered it reasonable for the Applicant to relocate herself elsewhere in the Philippines, such as Manila or Las Pinas, to avoid the possible risk of harm from HS and that it would not be unduly harsh to expect her to do so.

14.On her own admission, the Board found that the Applicant’s dispute with HS is a personal dispute and not on account of race, religion, nationality, membership of a particular social group or political opinion and therefore falls outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  As the Applicant never suffered any harm from HS in the past, the Board found there was nothing to suggest that she would face harm that would exceed the requisite threshold if she returned to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

15.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

16.The Applicant did not put forward any grounds of application for judicial review in her Form 86 or her supporting affirmation.  Obviously, she is not satisfied with the Decision and is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face 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.  At the hearing, after the above legal principles had been explained to her, she confirmed she had no complaint about procedural unfairness or irrationality and would leave it to the Court to look for errors of law on her behalf.  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

17.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.  The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted.  It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, adequate state protection is available and she could also safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds.  These are finding of facts and of law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted.  The Applicant could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds.  This is a mixed finding of fact and of law.  Insofar as it is a finding of fact, it 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.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.

Dated 9^th day of February 2024.

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