Bunquin Lowena Rivera v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1415/2018

[2020] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1415 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 oral submission by the Applicant 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 respective decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing her non-refoulement claim.

2.The Applicant is a 53-year-old national of the Philippines who first came to Hong Kong as a domestic helper in 1991 and worked as such for various employers until 2009 when she was arrested for taking up unapproved employment and sentenced to imprisonment.  After she was discharged from prison, she lodged her torture claim in May 2009 under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”).  She was then released on recognizance.  Her torture claim was rejected by the Director on 26 August 2011 under Part VIIC of the Immigration Ordinance, Cap 115.

3.On 30 June 2016, the Applicant again claimed non-refoulement protection.  A Notice to Persons Making a Non-refoulement Claim was served on her in which she was informed that the Director’s previous refusal decision regarding her torture claim would not be reviewed under the Unified Screening Mechanism (“USM”).  Her claim for non-refoulement protection would therefore be assessed by the Director on all applicable grounds, namely, BOR 2 risk^[1], BOR 3 risk^[2], and persecution risk^[3] other than risk of torture under Part VIIC of the Immigration Ordinance.  The Director rejected her claim on 12 June 2017.

4.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [22-33] of the decision of the Board.  The Applicant’s claim, briefly stated, was that she would be in danger if she were returned to the Philippines because she would be harmed or killed by her husband and her younger brother.  In view of the sensitivity of her complaints, the facts of her claimed events will be kept to the minimum.  In essence, she claimed that in 1985 she was raped by her younger brother when she was 18 and he was 14.  This continued regularly twice a month until 1989 when she married her husband.  After her marriage, she still lived with her brother.  One night when she was pregnant her brother molested her again.  It was stopped by her husband.  Her husband then denied that her baby was his and started to beat her up regularly.  She gave birth to her daughter later.  The Applicant left her country to work in Hong Kong in 1991.  She had occasional contact with her husband by phone and letter.  He warned her that he would tell others about the incestuous relationship if she returned to the Philippines and demanded her for money.  Her younger brother also threatened to disclose the matter to other family members or even harm her if she returned to the Philippines.  She last saw him at her father’s funeral in 2008.

The Director’s Decision

5.By a Notice of Decision dated 12 June 2017, the Director rejected the Applicant’s non-refoulement claim.  The decision covered BOR 2 risk, BOR 3 risk and the persecution risk.  In his decision, the Director was of the view that the fact that she did not seek for timely international protection at the first opportunity would undermine the credibility of her claims.  Having taken into account of all the relevant circumstances of the Applicant, he assessed the level of risk of harm as not real and not foreseeable.  In any event, state protection and internal relocation are available to her to lower the level of risk.

The Board’s Decision

6.The Applicant lodged an appeal/ petition to the Board against the Director’s decision.  She attended an oral hearing before the Board on 30 May 2018.

7.By Decision dated 9 July 2018, the Board rejected her appeal and confirmed the Director’s Decision.  The Board assessed on all applicable grounds under USM for non-refoulement protection including the persecution risk, BOR 2 risk, and BOR 3 risk.

8.The Board’s reasons for rejecting the claim were provided at para [37-67] of the Board’s Decision. In a nutshell, the Board found the Applicant could have been raped by her younger brother and her claim in terms of the incidents is plausible [38,50]. However, almost 30 years has passed since her husband came to know of the incidents, it would appear to be unlikely that he would carry out his threats if she returns to the Philippines [48].  Her younger brother would also reveal his own involvement if he reveals the incidents [52].  A secret that has been closely held between no more than 4 people is unlikely to be revealed now [54].  In any event, she could relocate safely should she return to the Philippines [65].  She failed to establish that she faces a genuine and substantial risk of being subjected to torture or CIDTP.

Application for leave to apply for judicial review

9.The Applicant filed a Form 86 on 18 July 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

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

11.In the Form 86 and supporting affidavit, the Applicant did not set out any grounds for the relief sought.

Discussion

12.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.  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 and COI materials, 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.

13.Though she applied for judicial review against the decision of the Director as well as that of the Board, the Director’s decision was superseded by the Board’s decision and hence not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, the Court will only focus on discussing the latter’s decision.

14.The Applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.

15.In the present case, the Board accepted the primary facts alleged by the Applicant.  It was a finding most favourable to the Applicant.  It however disagreed with the Applicant on the assessment of risk flowing from such events.  It concluded that the threats worried by the Applicant are unlikely to happen.  The Board was also satisfied that internal relocation would be viable.

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

17.In my view, the claimed fears are too far-fetched.  The alleged incidents happened almost 30 years ago.  There are no valid reasons why the Applicant’s husband and brother should reveal the incidents if she returns to her country.  The Applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety.  It could be taken into account as damaging the Applicant’s credibility.

18.Even on the Applicant’s own case, the decisions of the Director and the Board cannot be faulted.  I do not see any valid basis for questioning the fairness of the proceedings and the proper basis of the decisions.  Having reviewed under rigorous examination and anxious scrutiny, I cannot not find any valid ground to intervene with the Director’s and the Board’s decisions.  The Applicant’s application is entirely devoid of merits.

The conclusion

19.For the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review.  Accordingly, I refuse to give 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