Del Rosario Analyn Ferrer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2556/2019

[2025] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2556 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Reuden Lai:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.This is an application by Madam Del Rosario Analyn Ferrer (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 24 April 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.The Applicant is a Filipino. She was born on 2 March 1990 in Pangasinan, the Philippines. She received about 10 years of education. She had worked as saleslady in the Philippines from 2007 to 2008 and as foreign domestic helper in Hong Kong from 2014 to 2018. She did some part-time jobs in between.

3.The Applicant claimed that her husband in the Philippines (“Husband”) would harm or kill her because she had a baby with another man (“MO”) in Hong Kong. She married Husband in September 2007. She then came to Hong Kong to work as a foreign domestic helper in August 2014. She met MO in December 2016 while working in Hong Kong and developed a relationship with MO. She gave birth to a son (“Son”) of MO in September 2018.

4.After giving birth to the Son, the Applicant called her mother in September 2018 informing her about MO and the Son. Husband learned about the Son and got very angry. He took the phone from the Applicant’s mother and vowed to kill the Applicant if she returned to the Philippines. This was the last time when the Applicant had any contact with Husband.

5.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

7.On 3 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

8.In a judicial review, the court does not step into the shoes of the decision makers.

9.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

10.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

11.In the Form 86, the Applicant put forward the following grounds for her intended judicial review:

(1)  the Board unlawfully fettered its discretion by refusing the Appeal on the ground that it did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the Appeal;

(3)  the Board’s Decision to refuse the Appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self‑represented claimant.

12.All the aforesaid grounds referred to in the Form 86 were bare assertions without particulars and not supported by evidence. No particulars or supporting evidence was provided in the Supporting Affirmation. The Applicant attended the court hearing of 4 March 2025 (“Court Hearing”) but was unable to provide any particulars for the aforesaid grounds referred to in the Form 86. Without particulars and supporting evidence, these grounds are not reasonably arguable.

13.In the Supporting Affirmation, the Applicant put forward the following grounds for her intended judicial review:

(1)  there was substantial delay in processing the Claim;

(2)  the Applicant was not legally represented in the Appeal hearing;

(3)  the hearing bundle and the skeleton submissions of the Director were given to her just a few days before the Appeal hearing with an intervening weekend leaving her with insufficient time to prepare for the Appeal hearing. The majority of the documents were in English and she had only limited skills in English. She was confused in terms of what was happening. She said that the lack of care by the Board to make appropriate arrangements in relation to the hearing bundle rendered the Appeal hearing unfair;

(4)  the Board did not inform her of the Board’s Decision by phone but send the Board’s Decision to her by post which was received by her on 2 September 2019;

(5)  the Board wrongly found that her credibility was questionable and the hearing was unfair;

(6)  the Board significantly relied on sources of news which were not officially recognized, hearsay or outdated;

(7)  her BOR 2 risk claim had not been screened by the Immigration Department; and

(8)  the Appeal was refused on unacceptable and unexplainable grounds. The Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation. The Applicant stated that: “To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his [sic] case what real danger I would face if I am returned there.” (§15 of the Supporting Affirmation)

14.The Applicant complained that the Director took about 1 year to process the Claim and this was a substantial delay.

15.The Applicant lodged the Claim on 19 October 2018. A screening interview (“Interview”) was arranged for her on 3 April 2019 and the Director issued the DOI Decision on 24 April 2019, i.e. within 3 weeks of the Interview. From October 2018 to April 2019, the Director took less than 7 months to complete the assessment of the Claim. I see no delay on the part of the Director. Relying on this ground for judicial review has no merits.

16.The Applicant complained that she was not legally represented at the Appeal hearing before the Board. However, the Applicant had not explained in the Supporting Affirmation why she did not have legal assistance when she appealed to the Board. The Applicant confirmed at the Court Hearing that she was assisted by the Duty Lawyer Service (“DLS”) for the Interview but she could not remember why the DLS did not assist her for the Appeal.

17.As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“18. As a standard practice, the Director would have drawn her attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.”

18.The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17) In the absence of any assertion by the Applicant that she had applied to the DLS for legal assistance but the DLS had not properly applied the merit test in refusing her application, it does not lie in her mouth to complain of the lack of legal representation in the Appeal.

19.The Applicant complained that the hearing bundle and the Director’s skeleton submission for the Appeal were provided to her only a few days before the Appeal hearing scheduled for 29 July 2019 with a weekend intervening, leaving her with insufficient time to prepare for the Appeal hearing. The documents were substantially in English which she was not familiar with and she could not afford interpretation service.

20.It is noted that the Appeal hearing was not held on 29 July 2019 but on 13 August 2019. If the documents were provided to the Applicant a few days before 29 July 2019, the Applicant had more than 2 weeks to prepare her case before the Appeal hearing. Such period should be reasonably sufficient for the Applicant to prepare for her appeal case.

21.At the Court Hearing, the Applicant changed to say that the documents were provided to her about one week before the Appeal hearing.

22.It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. She has to live with or cope with her language disability. She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community.

23.I note that there was no interpretation clause in the Supporting Affirmation which was in English. In other words, the English Supporting Affirmation was prepared by the Applicant without assistance of an interpreter. The Applicant confirmed at the Court Hearing that she knew some English and her friend had also helped to explain the Supporting Affirmation to her. In such case, the Applicant was able to seek language assistance to interpret English documents to her.

24.Furthermore, the hearing bundle should be basically made up of her claim form, the records of the Interview, the DOI Decision, the country of origin information (“COI”) materials and her notice of appeal. The Applicant knew what was contained in her claim form and her notice of appeal which were documents prepared and submitted by her. She knew what was contained in the records of the Interview which she attended with the assistance of an interpreter. The Interview records should have been read back to her in her own language before she signed the same. The DOI Decision should have been explained to her by the DLS. In any event, she would have to under the DOI Decision before she would lodge the Appeal. The COI materials were COI considered and referred to in the DOI Decision.

25.The skeleton submissions of the Director for the Appeal would basically reiterate the Director’s grounds set out in the DOI Decision.

26.In the premise, I see no merits for the Applicant to argue that the lack of language assistance would jeopardize her rights in this case.

27.Even if the documents were provided to the Applicant only one week before the Appeal hearing, such period, though not long, was not unreasonable. The Applicant should not have indulged herself for the weekend and forgotten about her appeal as if she was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of her notice of appeal (i.e. 6 May 2019). The Appeal hearing was held on 13 August 2019. In between, the Applicant had more than 3 months to find out what the appeal bundle was all about. If she needed more time for preparation, she could have raised the same with the Board at the Appeal hearing. The Applicant confirmed at the Court Hearing that she did not raise such request to the Board at the Appeal hearing.

28.Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and she did not provide any particulars or documentary evidence to corroborate this complaint, nor did she raise any such issue during the Appeal hearing before the Board when she was able to give evidence and make representation of her case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

29.The Applicant complained that the Board had failed to inform her of the Board’s Decision by phone. I see no basis for such complaint. The Board was not obliged to inform the Applicant of the Board’s Decision by phone. Sending a copy of the Board’s Decision to the Applicant by post was in line with the Board’s usual practice. The Applicant had received the Board’s Decision on 2 September 2019 and managed to file the Form 86 herein on 3 September 2019 well within time for making this application. No prejudice was caused to the Applicant by the Board’s sending the Board’s Decision to her by post instead of informing her of the same by phone. I do not see that such complaint may constitute ground for judicial review of the Board’s Decision. The Applicant confirmed at the Court Hearing that in fact she had not asked the Board to inform her the outcome of the Appeal by phone. There is no merits for this ground.

30.The Applicant disagreed to the Board’s findings on her credibility. She stated that: “I answered all the questions with honesty and it aggravates him [sic] that his [sic] credibility was found questionable.” (§10 of the Supporting Affirmation) This was misconceived.

31.The Board was of the view that: “the [Applicant] has used exaggeration in her written claims but [the Board] found that during the hearing, she was reasonably consistent. The Board is mindful of the fact that it is quite possible for the centrepiece of an Appellant’s claim to stand despite the presence of some exaggeration, uncertainly [sic] or even untruthfulness.” (§57 of the Board’s Decision) As the Board did not actually question the Applicant’s credibility, this complaint of the Applicant had no factual basis. Such ground is not reasonable arguable.

32.The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated. COI by nature is hearsay evidence. The COI considered by the Director which were also considered by the Board were listed in the List of References appended to the DOI Decision. They came from official websites of government authorities, international organizations and media. They included publications up to March 2019 (see note 34 of the Board’s Decision) when the Appeal hearing before the Board took place on 13 August 2019. They were not out-dated. I see no merits in this complaint of the Applicant.

33.The Applicant complained that her BOR 2 risk claim had not been screened by the Immigration Department. This is plainly wrong. In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§24-26 of the DOI Decision. The Applicant’s BOR 2 risk claim had also been considered by the Board in §§20-21 and 81-82 of the Board’s Decision. I find this ground for the intended judicial review wholly devoid of merits.

34.The Applicant complained that the Appeal was refused on unacceptable and unexplainable grounds. Such complaint was vague and lacked particulars. No particulars were provided in the Supporting Affirmation and the Applicant was unable to provide any at the Court Hearing. This ground is thus not reasonably arguable in the intended judicial review.

35.The Applicant also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation. The Applicant provides no particulars or specifics to substantiate these complaints. She said that the Director and the Adjudicator should have visited her country to understand her claim.

36.There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct investigation of a non‑refoulement claim. It fact, it is not practicable nor reasonable to require the Director or the Board to visit all the risk states for the cases handled by them before deciding on the same. Such ground is not reasonable arguable.

37.The Applicant also said that she was unable to find a place to stay safely in her country. (§14 of the Supporting Affirmation)

38.As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

39.In disputing the findings on assessment on evidence, risk of harm and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

40.In a letter dated 21 January 2025, the Applicant sent to the court the birth certificate and school records of the Son as well as copy of the Hong Kong Identity Card of MO. All these matters are known to the Board and they add nothing to the Applicant’s case. The Applicant informed the court at the Court Hearing that both MO and the Son are Hong Kong residents.

41.At §61 of the Board’s Decision, the Board noted that it was the Applicant’s own evidence that there had been no history of violence from the Husband, that they had essentially been estranged for some time and they had no communication since September 2018. The Board therefore assessed the risk of harm from the Husband to be low.

42.Based on credible and consistent COI, the Board considered that there existed in the Philippines, adequate and effective protection in law and the judicial system. Protection against serious or significant harm could be provided to the Applicant by the state and the protection was durable and the state was willing and able to offer such protection. If Husband were to threaten or attempt to harm the Applicant, the Board considered that she could obtain protection from the authorities. The Board further found that Husband’s influence, if any, was confined to his local Barangay and internal relocation would be viable to the Applicant (§§61 and 65-67 of the Board’s Decision).

43.The Applicant’s evidence was that her family had accepted her relationship with MO and the Son. The Board was of the view that the Applicant’s family would not turn her away if she were to return to the Philippines and would support her if she had to remain. She could also stay with MO’s family in the Philippines in order to avoid the alleged threats. (§62 of the Board’s Decision) The Board considered that there was not a real risk that the Applicant would face any of the proscribed forms of harm should the Applicant return to the Philippines.

44.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

45.In §§75-92 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if she returned to the Philippines. The Board was not satisfied that any risk of harm from Husband reached the high threshold and minimum level of severity necessary to trigger non-refoulement protection as state protection was available to her. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

46.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

47.In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Dated the 2^nd day of April 2025.

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