Renido Antonio B. Alias Renido Antonio Balaswit v. Torture Claims Appeal Board / Non-refoulement

HCAL 756/2019

[2022] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 756 of 2019

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 (i) the Notice of decision dated 15 March 2018, (ii), Notice of hearing dated 31 July 2018 and   (iii), Decision dated 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The (i) is the Director’s Decision, which is not amendable to judicial review as it has been dealt with by the Board’s Decision and the (ii) is simply not subject to judicial review because it is not an administration decision. The only appropriate item is 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 in 1993 as a foreign domestic helper.  However, there was no immigration record of the applicant since 2005.  On 6 June 2016, she surrendered to the Immigration Department and claimed that she had overstayed in Hong Kong since 2005.  On 9 March 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor.

5.According to the applicant, she borrowed a loan from Suping in 1992, who was well connected with the mayor, for her business.  Her business failed and she defaulted the payments.  One day in 1992, she was assaulted by Suping with his jacket for failing to repay.  She confirmed before the Director that it was the only time Suping attacked her.  Meanwhile, her husband and mother-in-law also abused and criticized her for the loan.  Thereafter, the applicant left for Hong Kong for employment with the aim to repay the loan.  She was able to do that from 1993 to 2005.  Nevertheless, after her employment contract was terminated, she again defaulted the payments.  Out of fear, she went underground in Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 15 March 2018 by the Director (the “Director’s Decision”) and paragraphs 25 to 36 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:

(1)     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     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

(4)     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 refused the applicant’s claim.  The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15]-[19], and (iii) internal relocation was an option open to her [20]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 20 September 2018, the Board conducted an oral hearing for her appeal, during which the applicant gave oral evidence.

9.Having considered the applicant’s evidence, the Board considered her evidence to be inconsistent and lacked objective proof [39].  It also noticed that her manner in giving evidence was evasive and unforthcoming [40].  It identified several matters that were inconsistent with the objective information and devoid of common sense [45]-[48].  As to the debt, the applicant stated that she no longer knew the whereabouts of Suping or whether he was still alive [49].  The Board also scrutinized the alleged debt in details and concluded that the alleged sum and the alleged failure to repay were unsubstantiated [52]-[68].  For these reasons, the Board rejected the applicant’s 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 on 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant attached the hearing bundle without specifying any ground in support.

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, §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 has not been able to raise any valid ground 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 13^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