Salacup Digna Corpuz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 242/2019

[2022] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 242 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 the Decision dated 10 December 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 last entered Hong Kong on 22 May 2014 as a visitor.  However, she did not depart when her limitation of stay expired and had overstayed since 29 May 2014.  On 24 January 2015, she was arrested by the Immigration Department.  On 3, 5 and 10 February 2015 respectively, 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 and his affiliates from the New People’s Army (“NPA”). 

5.According to the applicant, her father was the village chief.  In early 2001, he investigated some illegal activities, the result of which led to the imprisonment of the applicant’s husband.  The applicant’s husband was a member of NPA. After the husband’s imprisonment, the applicant claimed that some men from the NPA broke into their house and demanded money.  They also informed her that her husband blamed her for his imprisonment.  Out of fear, the applicant fled to Manila and eventually to Hong Kong for protection.  While she was away from her home village, she knew that the NPA members continued to harass her family members for her whereabouts.  Details of the applicant’s claim were set out at paragraph 6 of the Director’s Decision as described below and paragraphs 5 to 11 of the Board’s Decision.

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 26 April 2018 (“the Director’s Decision”), the Director refused the applicant’s claim.  The Director refused to believe that her perceived fear was real and foreseeable because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15], and (iii) internal relocation was an option open to her [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 5 November 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [13].

9.The Board enquired the material aspects of the applicant’s claim [12]-[26].  Having considered the applicant’s evidence and her clarifications during the oral hearing, the Board accepted the key aspects of her claim [33]-[39].  With that in mind, the Board proceeded to consider the applicant’s claim under each applicable ground.  The Board found that there was no state involvement [49]-[55]. While the Board accepted that there was a threat of serious harms from her husband and that it was likely that she might be subjected to serious harms upon refoulement [61], it found that the applicant could relocate safely to other cities such as Manila and Cebu [62]-[64]. Further, although it was plausible that some of the police officers might be influenced by the NPA, the Board found that there was no evidence showing that the police force in the Philippine would deliberately withhold protection from her [73].  For these reasons, the Board rejected the applicant’s claim on all applicable grounds 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 25 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant did not set out any specific ground.

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. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

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.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 16^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