Panduro Jean Mosqueda v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 668/2019

[2021] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 668 of 2019

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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.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 interest party is the Director of Immigration.

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

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 will be dealt with on paper.

The applicant

4.The applicant is a citizen of Philippines. She came to Hong Kong as a domestic helper and was permitted to remain until 28 November 2015.  She overstayed and surrendered herself to the Immigration Department on 18 April 2016.  She lodged her non-refoulement claim by way of written submission on 8 December 2016. 

5.The applicant claimed that, if refouled, she would be harmed or killed by Roy Uy (“RU”) and his hired agents.  The applicant alleged to be a member of Liberal Political Party (“LPP”) whilst RU belonged to the rival party named Laban Democratikong Partido (“LDP”). She said that her friend Mark refused to join the LDP.  In an election in May 2010, LDP lost in an election for town mayor.  Thereafter in October 2010, the applicant witnessed that Mark was killed by RU’s follower.  Three days after Mark’s death, she saw some men riding on motorcycles prowling around her residence and she also received death threats.  Out of fear, she eventually fled to Hong Kong for protection.  Details of her story are set out in paragraph 8 of the Director’s Decision described below and paragraph 6 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 9 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 RU if she returned to Philippines [13]; that state protection would be available to her [14] and that internal relocation was an option open to her [15]. 

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  On 11 September 2018, she appeared before the Board and answered the Board’s inquiries with the assistance of an interpreter. 

9.The Board considered her evidence in the non-refoulement form against her testimony before it.  The applicant confirmed that neither she nor her family have any political affiliation nor had they engaged in any activity that would bring them to the adverse attention of the authorities of Philippines [41].  The Board identified several discrepancies between her claim before the Board and that before the Director [43].  It did not accept that the applicant could identify the killer or that someone followed her or that her house was surrounded or that she received any telephone threats [44].  Further, she or her family were never harmed or injured and the alleged event happened some 8 years ago [45].  The Board also rejected her late claim about potential risk of harm from her husband [46].  As a result, the Board concluded that her claim lacked credibility.  In any event, internal relocation was a viable option for the applicant [49].  Thus, the Board rejected her claim on all application grounds and dismissed her appeal [51]-67].  

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

10.The applicant has filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant’s written submissions stated that the Board was insensitive to the grave danger if she returned to the Philippines, which does not practice the rule of law as in Hong Kong.  The Philippines is currently run by a dictatorial president who practices extrajudicial killings and is notorious for police extrajudicial killings.  She has no faith in her country.  She cannot relocate or she will live like a fugitive. She considers that she should have protection.

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 Board had assessed her evidence and came to its conclusion that it rejected her evidence on the important facts in support of her claim. She does not have any factual basis for her claim. Her grounds in support of her application do not assist her. To say that the adjudicator was insensible to her situation is only her opinion without any evidence in support of it. Her reason for refusing to return to her own country is that she refused to join LDP. The Board rejected her evidence on this factual issue. As she did not commit any offence, it is hard to say that she will live like a fugitive if she relocates herself to live some other places in Philippines.

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 9^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