Lugay Joy Grace Sevillano v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 912/2019

[2022] HKCFI 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 912 of 2019

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 4 March 2019 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 on 28 July 2017 as a visitor and was permitted to stay until 11 August 2017.  She did not depart and had overstayed since 12 August 2017.  On 6 September 2017, she was arrested by the police.  From 7 September 2017 to 14 November 2017, the applicant lodged her non-refoulement claim by way of 19 written representations.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Lugay Jarry (“Jarry”) because she refused to join the New People’s Army (“NPA”).

5.According to the applicant, she married Jarry in 2012.  Jarry was a member of NPA and, after their marriage, often persuaded the applicant to join the NPA.  The applicant refused.  Jarry became abusive and assaulted her. Unable to cope with the physical abuse and mental stress, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 20 June 2018 by the Director (the “Director’s Decision”) and paragraphs 3 to 12 of the Board’s Decision as described below.

The Director’s Decision

6.The Director considered the applicant’s 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.         risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director refused to accept that she would face any real risk of harm from Jarry upon refoulement because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [16]-[23]; (ii) state protection would be available to her [24]-[27]; and (iii) internal relocation was a viable alternative for her [28]-[29]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 6 December 2018, the applicant attended the scheduled oral hearing and gave oral evidence before the Board [14]. 

9.The Board considered the relevant country of origin information (“COI”) about NPA.  It also considered the applicant’s evidence.  Insofar as the applicant’s core assertion that her husband kept pressing her to join the NPA was concerned, the Board found that Jarry was aware of the applicant’s hatred towards NPA and it was illogical for him to keep pushing the applicant’s enrollment [32]-[34].  The Board noticed that the applicant did not report Jarry to the police despite she knew the animosity between the police and NPA [35]-[36].  It also cast doubt on the applicant’s intention to come to Hong Kong [37]-[38].  In assessing the individual ground, the Board found that there was no state involvement [43] and that the COI showed that state protection and internal relocation were both available to her [44]-[54].  For these reasons, the Board dismissed her appeal.     

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

10.The applicant has filed Form 86 dated 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant has raised the issues of irrationality, procedural impropriety, failure to give adequate reasons, failure to consider the extended form of state acquiescence and failure to fully consider the COI in assessing the risks.

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 grounds as raised by the applicant in support of her application are the general principles for administrative law without any specific evidence or are her opinions or comments only. They do not constitute any valid ground for her application. The Board had considered her evidence and was entitled to form its views on the facts of her case. 

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 10^th day of May 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