Bantigue Susan Banes and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 588/2019

[2024] HKCFI 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 588 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 1st and 2nd Applicants in open court;

Order by Deputy High Court Judge To:

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicants:

Introduction

1.This is the Applicants’ application by Form 86 filed on 1 March 2019 for leave to apply for judicial review (the “leave application”) of a decision “made by Immigration Department on 22-2-2019”. They named the Immigration Department as the proposed respondent and the proposed interested party.

2.The Court’s enquiries revealed that the 1^st Applicant is a Philippine national. She last entered Hong Kong on 23 October 2016 to work as a foreign domestic helper. Her contract of employment was prematurely terminated but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authorities on 28 July 2017. She gave birth to her son, the 2^nd Applicant, on 24 July 2017. Then, she raised one non-refoulement claim for herself on 2 August 2017 and one for the 2^nd Applicant on 13 December 2017.

3.In due course, their non-refoulement claims were assessed by the Director of Immigration (the “Director”) on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice of Decision dated 28 June 2018 (the “Notice”) the Director rejected their claims. Their appeal against the Notice was dismissed by the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 22 February 2019 (the “Decision”).

4.Against this background, it is obviously the Applicants’ intention to seek judicial review of the Decision of the Board dated 22 February 2019, which she mistook as a decision of the Director. Hence, the Board should be the proper proposed respondent. In addition, on 11 August 2022, the Applicants filed a written submission seeking to add the Board as an additional respondent. Accordingly, leave is granted to amend their Form 86 as aforesaid and to substitute the Board for the Director as the proposed respondent.

5.The Court has been notified by the Director of Legal Aid that the 1^st Applicant had applied for legal aid for herself and for the 2^nd Applicant on 2 November 2021 but their application was refused. At the hearing, the Court advised the Applicants that as the 2^nd Applicant is a minor, the 1^st Applicant who acted on her behalf should seek legal representation so that the 2^nd Applicant’s interest could be properly taken care of. The 1^st Applicant replied that as their legal aid application had been refused and she had no funds to engage the services of a solicitor, she did not intend to seek legal representation. Having read the papers and considered of the issues raised by the application after reading the papers and having regard to the Applicants’ intention, the Court considered the absence of legal representation a mere irregularity and that the leave applications may be justly determined without the Applicants being legally represented.

The Applicant’s case

6.The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1^st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the 1^st Applicant claims that she and the 2^nd Applicant will be at risk of being harmed or killed by her husband and his associates upon their return to the Philippines for reporting his drug trafficking activities to the authorities and for giving birth to a son by another man.

7.The 1^st and 2^nd Applicants are now aged 46 and 6 respectively. The 1^st Applicant was born in Roxas City, the Philippines. She had ten years of education and has worked as a foreign domestic helper in Hong Kong. She had three children by her husband before they formally married in 2009.

8.Then her husband started having affairs with another woman and became abusive and violent towards the 1^st Applicant. In around 2014, he grabbed her by her hair and assaulted her, causing bruises all over her body. On another occasion, he sat on her chest and slapped her after a quarrel. A more serious incident occurred when he tried to cut her with a Samurai sword. She only avoided being harmed when two persons intervened. She did not report the incident to the police for fear of retaliation by her husband.

9.On 13 April 2014, two police officers visited her home while her husband was away. They asked to conduct a search at her home but they did not present any search warrant. They did not find anything from the search. Her husband returned home two days later and slapped her thrice when he learned that she permitted the police to search his house without a search warrant during his absence (the “2014 attack”). She suffered injuries to her nose bridge and lips.

10.In June 2014, an undercover police officer requested the 1^st Applicant to collect information on a drug trafficking group. On 7 July 2014, she overheard her husband’s calls with his boss. She confronted her husband and had an argument with him. Her husband struck her with a wooden pole (the “wooden pole attack”). She tripped and sprained her right ankle. She was hospitalised for three days and it took her about one week to recover.

11.One evening in mid-September 2014, she saw a meeting among her husband, his boss, his cousins and an aunt inside the living room of her home. She informed the undercover police officer on 20 September 2014. The police raided the home of her husband’s relatives in early October 2014 and found a large quantity of drugs in their home. Her husband’s aunt was subsequently convicted and sentenced to life imprisonment.

12.On 2 February 2015, her husband asked the 1^st Applicant to deliver a box to an address. She refused and he threatened to cause her sufferings. The next day, her husband made the same request. She agreed but delivered the box to a police station (the “delivery event”).

13.In May 2015, she told her husband that she had made arrangements to work overseas. Her husband became infuriated and abused her with fists and kicks (the “2015 attack”). Then she went to stay in her godmother’s home. The next day, her husband came to look for her, but she managed to hide away from him. He then vowed to file a court case against those who helped her arrange overseas employment.

14.Later, her husband came to know that the 1^st Applicant was staying in a training school in preparation for overseas employment. He then went to the agency and pulled a gun at the staff there, demanding them to give him the address of the training school. The staff refused and he left without harming anybody.

15.Her husband subsequently managed to find the Applicant at her godmother’s home. After a heated quarrel, the Applicant agreed to return home with him until she left for Hong Kong.

16.In October 2016, the 1^st Applicant returned to the Philippines for two days to visit her father. She did not return to her husband’s home and avoided any contact with him.

17.While in Hong Kong, the Applicant developed an affair with an African and gave birth to the 2^nd Applicant. Her husband became furious upon learning of this news. She was also told by someone that her husband had found out that she had reported him, his boss and his family to the police. She had therefore become the target of her husband and the drug syndicate behind him.

18.She does not believe the Philippine police would help her, as they took no action against her husband after her report against him. She does not believe internal relocation feasible because the drug syndicate could locate her throughout the Philippines through their powerful network.

The finding of the Board

19.The Applicant testified before the Board. The Board noted many contradictions between her oral testimony and her case before the Director. Her testimony before the Board departed from that in her NCF. She even played down the seriousness of the ill-treatment by her husband. For example, in respect of the 2014 attack, she told the Board that her husband was just angry and did not physically hit or verbally threaten her. She also wholly denied the wooden pole attack had ever taken place and that she had ever been hospitalised as a result of the attack. Contrary to her evidence in the NCF, she told the Board that the undercover policemen did not leave her with their phone number during their conversation in the street. The Board accepted that her husband had been violent towards the 1^st Applicant, including the attempted use of a sword, but did not accept that the above events took place.

20.The 1^st Applicant told the Board that her last contact with her husband was in 2016 after the arrest of his relatives in October 2015 (This is an erroneous finding of fact, if not a typographical error. On the evidence, the arrest took place in October 2014 after a series of events including the Applicant’s informing the undercover police officer about her husband’s meeting in September 2014[5]). She fortified her evidence by saying that her husband fled because at the time he was wanted by the police. On the basis of this statement, the Board found the delivery event, the 2015 attack and the encounters between the Applicant and her husband in 2015 as alleged by the Applicant in her NCF (collectively, the “2015 events”) could not have taken place. As the Applicant could not elicit further information on these events, the Board found that these events did not take place.

21.The Board accepted that her husband was wanted by the police for drug activities, that the 1^st Applicant witnessed a meeting between him, his boss and his relatives, that she had been approached by the police twice regarding her husband’s drug activities in 2015[6] (This is an erroneous finding of fact, if not a typographical error), that she had provided information to the police which led to the arrest of her husband’s relatives and that her last contact with her husband was in early 2016[7] when he fled from the police.

22.It would be convenient to note the Court’s observation on the Board’s finding in the two preceding paragraphs which it considers problematic. First, the Board appeared to have made an erroneous finding of fact that the arrests etc took place in October 2015 instead of 2014. Second, the error is repeated in relation to its finding as to when the undercover police officers approached the 1^st Applicant for information about her husband’s drug involvements. Third, the error led to a wholescale rejection of the 1^st Applicant’s evidence about the 2015 events. Fourth, as the Board expressly accepted that the 1^st Applicant’s last contact with her husband was in early 2016, there was no reason why the delivery event, the 2015 attack and the various encounters between the Applicant and her husband could not have taken place. Seemingly, the Board assumed that the husband was wanted by the police and fled since 2014 (according to the Applicant’s evidence) or since 2015 (according to the Board’s finding). But there was nothing to support that assumption. It is also not impossible that the husband was not wanted until 2016 as result of further evidence discovered in or after the 2014 raids on his cousin’s and aunt’s homes. The Applicant’s evidence that her last contact with her husband was in 2016 is not irreconcilable with her evidence about her husband’s ill-treatment or abuse on her between 2014 and 2016. In rejecting the Applicant’s evidence about the 2015 events, the Board seemed to have applied the usual civil standard rather than the very low standard of proof in non-refoulement claims.

23.As for the extent of ill-treatment, the Board accepted that they were limited to bare-handed slapping, grabbing of hair, pushing onto the floor and verbal abuse. It accepted there was an attempted use of a sword by the husband, which was never repeated despite they continued to live under the same roof until 2016. The Board therefore found her husband had no intention to seriously harm her. She did not suffer physical and/or mental injury of the requisite severity and did not require hospital treatment. Having regard to the domestic nature and frequency of ill-treatment, the Board found there was no substantial risk or basis of fear that the Applicants would be subjected to serious harm or ill-treatment by the husband on their return to the Philippines.

24.On the basis of authoritative and credible country of origin information (“COI”), the Board found that systemic state protection is available to victims of domestic violence in the Philippines and there is no suggestion that it was inaccessible to the Applicants.

25.As for the risks facing the 2^nd Applicant, the 1^st Applicant claimed in her Notice of Appeal that she feared her husband and her own family would cause harm to the 2^nd Applicant. However, she told the Board that she believed her family would help her if necessary and that they were supportive of the newly born child. The Board therefore found that 2^nd Applicant’s only fear of harm was from the 1^st Applicant’s husband and his associates.

26.From the fact that her husband had been in touch with her family but he never caused them any harm, the Board drew the inference that he did not intend to locate her or cause the 2^nd Applicant any harm. Despite the 1^st Applicant’s claimed fear of harm from her husband, his relatives or his associates, she told the Board that they did not know she tipped off the police about their drug activities. The Board therefore considered her fear speculative. It held that the Applicants were not at risk of serious harm that would exceed the requisite thresholds for claiming protection. It also did not accept that their life would be put at risk upon their return.

27.The Board found that there was no evidence of any involvement by state officials or acquiescence by public officials in the alleged ill-treatments. In relation to persecution risk, the Board added that the events they relied on for their claims had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

28.Applying the above findings to the requirements for seeking protection under each of the proscribed risks of harm, it held that she did not meet the requirement for any of those risks and her appeal must therefore fail. For all these reasons, the Board dismissed her appeal and affirmed the decision of the Director in his Notice.

Legal principles applicable to judicial review

29.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[8].

Grounds for judicial review

30.The 1^st Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, the only complaint she raised was that she disagreed with the decision of the Immigration Department as they disregarded her dangerous situation. The Court assumed for her benefit that this complaint is directed at the Board.

31.The essence of the Applicants’ complaint is that they disagreed 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. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review 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.

32.At the hearing, after the legal principles in the preceding section had been explained to the Applicants, the 1^st Applicant confirmed they had no complaint about errors of law, procedural unfairness or irrationality in the Decision. The Court would not take her confirmation for granted, but will make its own independent assessment upon a vigorous examination of the Decision with anxious scrutiny.

33.In the Applicants filed a submission on 11 August 2022 advancing six specific grounds of review. The submission is very familiar to the Court as it has seen similar or even identical grounds in other applications. The submission appears like a template submission without regard to the actual facts of the case. In answer to the Court’s question, the 1^st Applicant’s first response was that the submission including the grounds was prepared by her. But she was unable to provide particulars or elaboration of the grounds. Then, she said it was prepared by the interpreter. When it was explained to her that it was unlikely, she said it was prepared by a non-governmental organisation. Nevertheless, there was no need to investigate that issue. The Court explained the grounds to her and explored them with her.

Ground (1) - Procedural impropriety: Failure to conduct sufficient due diligence

34.The particulars of this ground are as follows:

“Failure to properly apply paragraph 2 of the UN Committee against torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focussed on whether such reliefs showed merely signs of positive improvement.”

The 1^st Applicant was unable to elaborate on this ground and was unable to provide particulars about what reforms and means of relief introduced and relied on by the Board were not effective. All that she could say was that the law in the Philippines is different from the law in Hong Kong.

35.As the 1^st Applicant was unable to give particulars of this ground, it could not be assessed. This ground may probably be directed at the Board’s finding on the basis of the COI about availability of state protection against and assistance to citizens generally or victims of domestic violence in particular. The Board had considered COI, such as Country Reports on Human Rights Practices for 2017, issued by the State Department of the United States, Responses to Information requests: Philippines: Domestic Violence, including legislation, availability of state protection and support services for victims and Philippines: Domestic Violence, including legislation, recourse available to victims, including state protection, legislation and support services available to victims issued by the Immigration and Refugee Board of Canada. The COI are from authoritative and credible sources. The adoption of the facts reported in these COI are finding of facts within the province of the Board.

Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI

36.The particulars of this ground are as follows:

“ [The Board’s] failure to conduct that [the 1^st Applicant] and [the 2^nd Applicant] would face serious risk from my enemies who will harm me because of my failed to repay the loan and current situation view which consider a serious matter for me which I would face definitely harm me upon refoulement.”

When asked to identify the COI which the Board had failed to conduct enquiries, the 1^st Applicant reply was that the Board should find that she would be at risk of harm returning to the Philippines. Her complaint is not about failing to make sufficient enquiry into the COI but about the Board’s finding of facts.

37.The particulars asserted under this ground is that the Applicants are at risk of harm because of their inability to repay the debt. The 1^st Applicant explained that the debt arose from her having used her husband credit card. She admitted that she had not advanced this ground in her claim. This was never an issue before the Director or the Board.

Ground (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 2 and BOR 3 Risks

38.The particulars of this ground are as follows:

“ Failure to reasons for assessment of Lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 and BOR 3 Risk. It’s seems May be my claim is personal dispute against money lender but my fear is low frequency and definitely [the 1^st Applicant] and [the 2^nd Applicant] will harm by my enemies.”

39.Having vigorously examined the Decision with anxious scrutiny, this Court is satisfied that the Board had considered the evidence, made relevant finding of facts and given full reasons for refusing the Applicants’ claim under the BOR 2 Risk ground and BOR 3 Risk ground. There is no basis for the challenge: see “Overall Scrutiny”.

Ground (4) - Error/Misdirection in law:

40.The particulars of this ground are as follows:

“ Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me. My claim including with my son accompanied in this application, I was apply legal aid before any my legal aid case has been dismissed, so I would like to request consider my late grounds I am submitting.”

41.The 1^st Applicant was unable to identify the misdirection complained of. She admitted she had made no complaint about psychological strain and threat before the Director and the Board. She asserted that she did suffer psychological strain though she had not mentioned them in the NCF. As there was no such issue before the Board, there could be no factual basis in support of this ground.

Ground (5) - Procedural Impropriety -

42.The particulars of this ground are as follows:

“ The [Board] Failure to consider our fear that my enemies still fear for me, I and my son could no return to my country in this circumstance, therefore there are awaiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country. I am so worried about my son life that he was born in Hog Kong and never been in Philippine so my enemies easily could harm us if they found in Philippine.”

43.This is a direct challenge of the finding of fact of the Board which is not permissible save for errors of law, procedural unfairness or irrationality in the Decision.

Ground (6) - Procedural Impropriety - No sufficient basis to find that the Applicants are at risk

44.The particulars of this ground are as follows

“ No sufficient basis to conclude that [the 1^st Applicant] and [the 2^nd Applicant] would not be at risk of being subjected to torture and/or CIDTP upon refoulement.”

45.The essence of the Applicants’ complaint is that they disagreed 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. That is not permissible.

Overall scrutiny

46.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 Court noted that the claim for non-refoulement protection includes a claim by a minor, ie the 2^nd Applicant. The Board did not seem to have made any separate assessment of the 2^nd Applicant’s claim. However, the 1^st Applicant had not advanced any separate claim in respect of the 2^nd Applicant. The factual basis of their claim is entirely the same. The 2^nd Applicant’s claim arose from the same factual matrix, ie the husband’s threats to and ill-treatment of the 1^st Applicant and the 2^nd Applicant’s birth outside of wedlock. The source of feared harm and risk of harm is the same, ie the husband and his relatives. The nature of the feared harm from the husband is the same, ie physical violence and death. The cause of the feared harm is similar, ie the 1^st Applicant having affairs outside of wedlock and the 2^nd Applicant being born outside of wedlock. The 2^nd Applicant’s claim is hinged on the 1^st Applicant’s and stands or falls with it. The 2^nd Applicant had never suffered any harm at the hands of the husband. The Applicants have not advanced any risk of harm specific to the 2^nd Applicant. There are clear indications that the Board had in mind the interest and claim of the 2^nd Applicant when making its Decision. The Court is satisfied that the Board had adequately considered all the harm and risk of harm facing the 1^st and the 2^nd Applicants.

47.Except in respect of the 2015 events, the Board accepted the 1^st Applicant’s account as she asserted and that she was genuinely in fear of harm from her husband and his associates. As the Court has noted in paragraph 23 when summarising the Board’s finding, the Board’s rejection of the 1^st Applicant’s evidence about the 2015 events may be an error of law. However, even accepting that it is, the error would have no adverse impact on the Decision because on the basis of the ill-treatment she suffered, the Board found the ill-treatment did not attain the requisite level of severity. On the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for her fears and her feared risk of harm is not real. Furthermore, on the basis of authoritative and credible COI, the Board was satisfied that adequate state protection available to prevent the risk if it turns out to be real. 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. Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicants are not entitled as a matter of law to protection under any of the four applicable grounds under the USM. Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

48.Leave to amend the leave application is granted, but the leave application as amended is refused.

Dated 28^th day of May 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