Case Document

100%Judiciary

HCAL 2778/2018

[2022] HKCFI 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2778 of 2018

BETWEEN
	Balay Ya Nelsa Kichayan	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 19 November 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, the Director of Immigration (“the Director”) is the interested party and the decision for judicial review is the Board’s Decision.

The applicant

4.The applicant is a national of the Philippines. She last entered Hong Kong as a foreign domestic helper on 12 January 2015 and was permitted to remain until 30 May 2016 or two weeks after termination of contract, whichever was earlier. She applied for extension of stay on 30 May 2016 but her application was refused. On 21 September 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Reny.

5.According to the applicant, Reny started to physically abuse her after their first child was born. Their relationship further deteriorated in 2010 when she left the Philippines. In December 2014, when the applicant returned home to visit her family, Reny accused her of having an affair in Hong Kong and assaulted her. He even went to grab a knife to stab her. Out of fear, she returned to Hong Kong and stayed for protection. Details of her claim were set out at paragraph 7 of the Director’s Decision and paragraph 14 of the Board’s Decision as 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 a Notice of Decision dated 17 January 2018 (“the Director’s Decision”), the Director refused her claim. The Director found that no grounds were presented to show that she would be harmed or killed by Reny upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[16]; (ii) state protection would be available to her [17]-[20] and (iii) internal relocation was an option open to her [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 October 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter [7].

9.The Board explored in details with the applicant in relation to the material aspects of her claim [15]-[43]. Among the inquiries, the Board raised doubts as to her children’s living arrangements, which the applicant gave inconsistent accounts and it was plausible that the kids were still looked after by her husband [21]. The Board also noticed that the applicant gave different versions for matters relating to Reny [22]-[27]. Further, the applicant’s versions on the previous and recent assaults from Reny were implausible and her explanations of why the police would not assist her and of why she could not relocate to other areas deviated from the country of origin information [28]-[41]. As a result, the Board found the centerpieces of her claim to be incredible [44]-[45]. For the above reasons, the Board rejected her claim and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 6 December 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 enclosed the hearing bundle without specifying any ground in support of her application.

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 did not accept her evidence on the facts of her case. There is no valid reason from the applicant 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 21^st day of March 2022

(M.O. WONG)(Ms)
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 21 March 2022 Balay Ya Nelsa Kichayan 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 21 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10105/18/1/378/F545 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3227/17 (Formerly RBCZ 13328/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)