Case Document

100%Judiciary

HCAL 191/2019

[2022] HKCFI 995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 191 of 2019

BETWEEN
	Unlayao Juralyn David	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 present 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 18 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”). She appeared before the Court on 7 February 2022.

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 had been working in Hong Kong as a foreign domestic helper since 2006. Her last employment contract was terminated prematurely on 22 May 2012. She did not depart within the time limit and had overstayed since 6 June 2012. On 10 June 2015, she surrendered to the Immigration Department. On 13 July 2015, 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.

5.According to the applicant, in October 2001, she confessed to her husband that she was raped by her cousin when she was young. Her husband’s attitude changed drastically. He became emotional and turned into an alcoholic. Since then, he had been abusing her physically. In 2004, her husband was drunk and stabbed her forehead with a knife. The applicant had not seen him since the incident but heard from her mother-in-law that he joined the New People’s Army. She was also informed about the death threats against her from her husband’s cousin. Out of fear, she stayed in Hong Kong for protection. Details of her claim were set out at paragraph 8 of the Director’s Decision and paragraph 23 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.  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 1 September 2017 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director refused to accept that she would be subjected to any risk of harm upon refoulement because (i) the absence or low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14], and (iii) internal relocation was also an option [15].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board observed that the applicant had been working in Hong Kong since 2006 when the alleged fear of harm had already occurred. Yet, she did not make any attempts to seek protection while she was in Hong Kong and almost 9 years had lapsed before she took actions. Such omission was inconsistent with someone who was genuinely in need of protection [25]-[26].

10.As to the merits of the applicant’s claim, the Board noted that she had been separated from her husband for some 14 years and it was unlikely that she would still be subjected to any risk of harm from him [30]. In any event, the Board considered her evidence to be evasive, suspicious and inconsistent [32]. Meanwhile, some of the applicant’s evidence based purely on hearsay information. The hearsay nature and those inconsistencies severely undermined her credibility [35]-[36]. The Board also found that the applicant failed to prove the physical assaults from her husband and that, if any, the dispute was confined to her local area [39]. In passing, the Board considered that the applicant could relocate to other areas in the Philippines given her age, education and working experience [60]. As a result, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant has raised the grounds below.

(1)  She was not legally represented at the hearing and was not legally aided for her hearing.

(2)  The hearing bundle was given to her just a few days before the hearing. The contents are in English. She did not have sufficient time to prepare for the hearing.

(3)  The Board did not notify her by phone although she had asked it to do so.

(4)  She was confused of what happened at the hearing. She had given the answers honestly. The Board was wrong to question her credibility.

(5)  The Board had relied upon source of news which is not officially recognized and it also relied on outdated cases.

(6)  The Board did not go through the screening process for the BOR2 risk.

(7)  The Board had not made proper inquiry and without careful understanding of her situation. The adjudicator is invited to tour her country to make inquiry there.

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. If she did not have enough time to prepare for the hearing because of the late delivery of the hearing bundle, she could have asked an adjournment of her hearing for her to make her preparation. She did not do so. However, up till now, she has not been able to tell this Court in what respects the Board’s finding of the facts against her was due to her unpreparedness of her case. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22]. The screening process in the first place had covered all the facts of her case. There is no requirement under the Ordinance that another screening process has to be made for her BOR 2 risk claim. To say that the Board had relied upon outdated case or not officially recognized source of news is only her opinion. The Board can rely upon the Country of Origin Information without going to her country to make the inquiry as she suggested. All grounds above fail.

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 8^th day of April 2022

(Chasel MAN)
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 8/4/2022 Unlayao Juralyn David 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 8/4/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8571/17/9/243/F450 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1773/17 (formerly RBCZ/12552/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)