Aure Jonilyn Celso v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2117/2018

[2022] HKCFI 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2117 of 2018

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 21 September 2018 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 national of the Philippines. She last arrived in Hong Kong on 12 March 2014 as a domestic helper. However, her employment contract was terminated prematurely on 1 February 2015 and she overstayed. On 22 December 2015, she surrendered to the Immigration Department. On 20 January 2016, she lodged a non-refoulment claim.  The basis of her claim was that she would be harmed or killed by her stepfather because she witnessed a rape case committed by him. 

5.According to the applicant, she saw her stepfather rape her stepsister in around 2000.  She took her stepsister for a medical checkup and also reported the rape to the police.  While her stepfather was arrested by the police, he was subsequently released.  From 2002 to 2012, her stepfather had been harassing her and on one occasion threw stone at her neck.  Out of fear, she fled to Hong Kong for protection.  Details of her story are set out in paragraph 6 of the Director’s Decision and paragraph 6 of the Board’s Decision described below.

The Director’s Decision

6.The Director considered her claim 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 13 July 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by her stepfather was assessed to be low [13]-[24]; that state protection would be available to her [25] and that internal relocation was an option open to her [26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 3 May 2018 and 13 June 2018 respectively, the Board conducted two oral hearings for the applicant’s appeal, during which the applicant gave oral evidence with the assistance of an interpreter [5]. 

9.The Board recorded the applicant’s oral evidence at paragraphs 10 and 11 of the Board’s Decision.  It found that some of the aspects in the applicant’s claim might be plausible [14].  However, the Board refused to accept that, among others, the stepfather was from a powerful family.  It also refused to give any weight to the medical report and the applicant’s account on the alleged sexual assault.  Further, her motivation of coming to Hong Kong was not for protection and that there was no evidence suggesting that her stepfather had intended to seriously harm or kill her given that she had lived at home for some 11 years before she came to Hong Kong [15].  In assessing the individual grounds, the Board also found that state protection and internal relocation to Manila were available to the applicant [21].  Thus, the Board rejected her claim on all applicable grounds and dismissed her appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 4 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant only said that the Board’s Decision was biased and unreasonable.

DISCUSSION

12.The Court will bear in mind that the Board’s Decisions 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 raised no valid challenge against the Board’s Decision. Those grounds are only her comments without any evidence in support. The Board is quite entitled to cast doubt in her evidence.

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

Dated the 28^th day of January 2022

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