Jalmasco Jonalyn Barcelona v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1584/2021

[2021] HKCFI 3774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1584 of 2021

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 25 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of the Philippines.  She was last permitted to stay in Hong Kong as a visitor until 6 March 2020 but she overstayed.  On 12 May 2020, she surrendered to the Immigration Department.  On 29 May 2020, she lodged a non-refoulement claim.  Thereafter, she did not provide any responses to the Immigration Department in relation to her non-refoulement claim.  On 21 May 2021, she was again arrested by the police and transferred to the Immigration Department.  On 27 May 2021, she wrote to resume her non-refoulement claim.  She is currently detained at the Castle Peak Bay Immigration Centre. 

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend.  According to the applicant, she separated with her ex-boyfriend in 2005 and had a sole custody of their daughter.  In 2016, the applicant opened a salon which her ex-boyfriend invested some money.  However, her business failed and the ex-boyfriend started demanding for the money.  He called to threaten her if she failed to repay.  But the applicant confirmed that her ex-boyfriend never chased the money in person.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out in paragraph 6 of the Director’s Decision described below and paragraphs 31 to 32 of the Board’s Decision.

The Director’s Decision

1.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 a Notice of Decision dated 21 July 2021 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that her ex-boyfriend had no real intention to seriously harm or kill her upon refoulement [14]-[16]; that her credibility was in doubt [17]-[18]; that state protection would be available to her [19]-[25] and that internal relocation was available to her [26]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  An oral hearing was scheduled to be on 8 September 2021, during which the applicant gave oral testimony before the Board with the assistance of an interpreter [10].

9.Having considered the applicant’s evidence and seeking clarifications from her during cross-examination, the Board rejected her appeal.  The Board observed certain material inconsistences in the applicant’s oral evidence and those in her written statements [59]. The Board rejected the applicant’s claim that she was threatened by her ex-boyfriend as she provided inconsistent accounts as to how her ex-boyfriend threatened her [61]-[62].  It also noticed that the applicant did not file her non-refoulement claim on her first arrival, which contradicted with someone who was genuinely seeking for protection [64].  Viewed the evidence in totality, the Board found that the applicant’s claim on all applicable grounds was not substantiated [68]-[72]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 18 November 2021 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant did not specify any ground in support of her application.

DISCUSSION

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

13.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).

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 submitted no valid ground to challenge 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 16^th day of December 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