Uy Sherry Ann Soriano v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2642/2018

[2022] HKCFI 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2642 of 2018

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 13 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). She had also included the Director’s Decisions as described below in her application for leave for judicial review. However, since she had appealed the Director’s Decisions to the Board, she is not allowed to apply for judicial review of the Director’s Decisions unless there are exceptional circumstances, which are non-existent.

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 last entered Hong Kong on 21 March 2013 and was granted visa to stay as a domestic helper. However, her employment contract was terminated prematurely on 11 May 2013. She did not depart and had overstayed.  On 26 June 2013, she raised a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her stepfather who had assaulted and raped her before.   

5.According to the applicant, her mother separated from her father in August 2011.  When the applicant returned home from her travel for her trading business, her father and siblings had all moved out, leaving her alone with her mother and a stepfather.  The applicant claimed that, one night in August 2011, her stepfather injured and raped her.  A few days after the rape, her stepfather threatened to kill her if she told anyone about the incident.  Out of fear, she eventually stayed in Hong Kong for protection.  Details of her claim were set out at paragraph 6 of the Notice of Decision dated 26 February 2015 by the Director (“the Director’s First Decision”) and paragraphs 9 to 22 of the Board’s Decision described below.

The Director’s Decisions

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 the Director’s First Decision, the Director refused her claim on Torture risk, BOR3 risk and Persecution risk for the reason that the level of risk of harm from her stepfather upon refoulement was assessed to be low because (i) she failed to show a likelihood that the stepfather would threaten or cause harm to her [13]; (ii) state protection would be available to her [14], (iii) internal relocation was an option open to her [15]-[20]; and (iv) her conduct was inconsistent with someone who was genuinely in need of protection [21]-[22].  In a Notice of Further Decision dated 16 May 2017, the Director also rejected her claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that she would be subjected to violation of her right life upon return. 

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  On 14 August 2018, the Board conducted an oral hearing for the applicant’s case, during which she gave oral evidence before the Board.

10.The Board sought clarifications from the applicant on the material aspects of her claim [23]-[52].  Having considered her evidence, the Board found that inconsistencies between the applicant’s written statements and her oral evidence undermined her credibility, such as the details of the rape incident and the circumstances following the alleged incident [53]-[64].  For this reason, the Board found that the applicant failed to establish a genuine risk of harm if refouled.  Thus, it rejected the applicant’s claim on all applicable grounds and dismissed her appeal [65]-[77].  

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

11.The applicant has filed Form 86 dated 22 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant enclosed the hearing bundle and the Board’s Decision without specifying any specific ground in support of her application.

DISCUSSION

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

15.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.”

16.There is no valid reason from the applicant to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 7^th day of March 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