Mecate Farida Reondres v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 788/2019

[2021] HKCFI 3275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 788 of 2019

BETWEEN

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the interested party is the Director of Immigration (the “Director”).

3.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  Her application is therefore dealt with on the papers.  

The applicant

4.The applicant is a citizen of Philippines.  She had been working as a domestic helper in Hong Kong since 2003 and her last employment contract expired on 1 February 2009.  However, the employment contract was terminated prematurely on 16 January 2009.  She overstayed and surrendered herself to the Immigration Department on 13 September 2016.  She was sentenced to prison for four months for breaching the condition of stay. Upon her release, she lodged a non-refoulement claim on 20 March 2017.

5.The applicant claimed that, if refouled, she would be harmed or killed by the loan shark, Mr. Rushed Nolacio (“RN”).  The applicant alleged that she borrowed around 150,000 pesos from RN, a powerful man with many followers, for her brother’s brain surgery after a traffic accident in around August 2005.  She was solely responsible for the loan and continued to repay the loan by installments while she was working in Hong Kong.  However, in 2009, when her contract was terminated, she defaulted the repayments.  She learnt that RN threatened her father that she would be killed if she did not repay.  Out of fear, she stayed in Hong Kong.  Details of her story are set out in paragraph 7 of the Director’s Decision described below and paragraph 19 of the Board’s Decision.  

The Director’s Decision

6.The Director considered her application in relation to the following risks:

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

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 15 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there was no ground for believing that she would be harmed or killed by the loan shark if she returned to Philippines [14]-[16]; that state protection would be available to her [17]-[22] and that internal relocation was an option open to her [24].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  On 30 November 2018, she appeared before the Board to give evidence in respect of her claim with an assistance of an interpreter. After hearing the applicant and considering the documents before it, the Board dismissed the applicant’s appeal. 

9.The Board was guided by relevant legal principles in assessing the applicant’s credibility [21]-[22].  It found that there was no independent or probative evidence in support of the applicant’s alleged costs of her brother’s treatment [26]; that the applicant demonstrated little or no knowledge about the terms of the loan [32]-[39]; that her family did not encounter any problems with RN despite her default in payment [40]-[43]; and that her evidence was inconsistent or improbable in several material aspects of her claim [44]-[46].  Evaluating the applicant’s evidence in the non-refoulement claim form against her oral evidence, the Board refused to accept that she would face a real chance of harm of any type upon refoulement [51]-[52].  On the basis of lack of credibility, the Board concluded that she failed in all applicable grounds and thus her appeal against the Director’s Decision was not substantiated.   

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant had not stated any specific ground in support of her application.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

15.The applicant has not raised any valid challenge against the Board’s Decision.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 5^th day of November 2021

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