Saldua Dorothy Trifalgar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1409/2018

[2020] HKCFI 2733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1409 OF 2018

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 submission of the Applicant being present/ absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.The Applicant, born in 1980, is a national of the Philippines.  She last arrived in Hong Kong as a domestic helper on 19 March 2011.  She overstayed since 8 July 2011 after termination of her employment contract and remained in Hong Kong unlawfully.  On 8 December 2015 she surrendered to the Immigration Department and lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [10-17] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by people of New People’s Army (NPA).  She claimed that her father was a staff sergeant who retired from the Philippines Army in 2016.  In 1986, when she was 6 years old, she was travelling with her parents on a military truck which was ambushed by the NPA.  In 2011, when she was in Hong Kong, she received a call from her sister who said that the NPA had made a threat against her family.

The Director’s Decision

4.By a notice of decision dated 5 July 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds to believe she would be at any real risk of harm; and state protection as well as internal relocation as a reasonable option are available to the Applicant.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The Applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s Decision

5.The Applicant attended a hearing before the Board on 11 May 2018.

6.By a decision dated 12 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the Applicant’s claim at para [30-69] of its decision.  The essential reasons can be summarized as follows: 

(1)  it found the facts and information provided by the Applicant implausible or unreliable which affected her credibility and reliability [31];

(2)  she only lodged her protection claim after overstaying for over 4 years [31a];

(3)  the number and nature of inconsistencies and implausibility in her evidence were serious and undermined its reliability, and the Board found her dishonest and unreliable [32];

(4)  in any event, the Board found state protection and internal relocation available to the Applicant [45, 69].

Application for leave to apply for judicial review

8.The Applicant filed a Form 86 on 17 July 2018 for leave to apply for judicial review of the decision of the Board.

9.In the Form 86 and affirmation in support, the Applicant did not set out any grounds for the relief sought.  She only repeated that her life would be in danger in her country.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

13.In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and rejected the account of primary facts based on the major inconsistencies and implausibility in the Applicant’s evidence.  In any event, state protection and internal relocation are available to her.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

14.As explained above, the assessments of evidence, state protection and internal relocation and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

15.The Form 86 and affirmation did not set out any particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Indeed, the Applicant’s claims are too far-fetched and unconvincing.  Her conduct in Hong Kong by her delay in lodging the claim for protection damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.

17.Even if one gives her account the most favourable interpretation, the alleged past experiences demonstrate no real risk of future harm.

18.There cannot be any criticism of the Board’s determination which is eminently reasonable.

19.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

20.For the reasons given, there is no prospect of success at all in the Applicant’s intended application.  Accordingly, I refuse to grant leave to apply for judicial review.

Dated 11 November 2020

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