Ronquillo Marites Galiza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1081/2019

[2022] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1081 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 1 April 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 last entered Hong Kong as a visitor and was permitted to stay until 15 June 2016. However, she did not depart and had overstayed since 16 June 2016. On 23 June 2016, she surrendered to the Immigration Department. On 28 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 Lawrence Ronquillo (“LR”).

5.According to the applicant, she married LR on 3 July 2009. The first two years of their marriage were harmonious. Nevertheless, LR changed under the influence of his bad friends, becoming ill-tempered and getting involved in alcohol and gambling. In 2012, she was assaulted by LR for refusing to give him money. Since then, the physical abuse had started. Thereafter on 10 February 2016, the physical abuse escalated and she was attacked, sustaining wounds and bruises. The intervention from the community organization for family disputes and domestic violence was of no avail. LR threatened to kill her. Out of fear, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 9 August 2018 by the Director (the “Director’s Decision”) and paragraph 6 of the Board’s Decision 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 (“HKBOR”) (“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 on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [12]-[13]; (ii) state protection would be available to her [14]-[19], and (iii) internal relocation was a viable alternative [20]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 December 2018[1], the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter [7]. This difference of the date of hearing is irrelevant for the present purpose.

9.Having considered the applicant’s evidence and her response to the relevant country of origin information (“COI”), the Board dismissed her claim. The Board noted that the COI indicated a provision of extensive and comprehensive measures from the Philippines government in combating the domestic violence [66]. While it was plausible that the domestic violence against the applicant existed, the COI showed that the government could effectively protect her [67]-[70]. In relation to the applicant’s fear that she would be persecuted for the fraudulent acts she committed in the past, the Board found that it was speculative [71]. Further, the Board found that internal relocation was a viable option for the applicant [73]-[75].

10.For the aforesaid 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

11.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant enclosed documents such as her recognizance, passport copy, agreement on administering and delivery assistance by a Hong Kong organization, the Board’s Decision and the hearing bundle without specifying any ground. The documents do not show that the Board was in error in its finding of the facts.

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, §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 ground to challenge the Board’s Decision.

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 31^st 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