Case Document

100%Judiciary

HCAL 2085/2018

[2022] HKCFI 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2085 of 2018

BETWEEN

	Resurreccion Mary-Jane Yacapin	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 30 August 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 a national of the Philippines. She entered Hong Kong as a domestic helper on 26 February 2016. After her contract was terminated prematurely, she left Hong Kong but reentered on 29 November 2016 as a visitor. She overstayed this time and surrendered to the Immigration Department on 19 December 2016. She lodged her non-refoulement claim on 23 March 2017 and 14 June 2017.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband and killers. According to the applicant, she witnessed a murder in January 2016 and she was able to see the killers’ faces. Shortly after, there was rumor in her village that someone saw the murderers’ faces. Being afraid that she would be found by the killers, she went into hiding. However, she never encountered the killers or hurt by them. After she started her employment in Hong Kong, her husband constantly threatened her and demanded money from her. He would punch her in the stomach and slap her on the face if she failed to do so. He also found out about her extramarital relationship in Hong Kong and posed death threats to her. Out of fear, she stayed in Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision and paragraphs 11 to 27 of the Board’s Decision described below.

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 23 November 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 upon refoulement was assessed to be low [11]; that state protection would be available to her [12]-[16] and that internal relocation was an option open to her [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. During the oral hearing held on 16 May 2018, the applicant gave oral evidence before the Board.

9.The Board observed that there were discrepancies in the applicant’s oral evidence with those stated in her non-refoulement claim, in particular, the details of the murder that she witnessed [37]-[55]. She also provided inconsistent accounts on the details in relation to the fear of harm from her husband [57]-[74]. Thus, the Board refused to accept the material aspects of the applicant’s claim as to the murder and the husband’s threats or assaults [75]-[81]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds [82]-[117].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 2 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, she said that the Board disregarded her dangerous situation.

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’s ground in support of her application is only her opinion, without any evidence in support. It does not assist her application.

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 23^rd day of February 2022

	(Chasel MAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23/2/2022 Resurreccion Mary-Jane Yacapin Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/2/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9448/17/12/115/F491 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2676/17 (Formerly RBCZ 11236/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)