Borja Jennifer Sinnar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1177/2021

[2022] HKCFI 1464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1177 of 2021

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 30 July 2021 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 23 April 2017 to work as a foreign domestic helper. On 29 May 2017, her employment contract was terminated prematurely. She applied for extension of stay. Her limitation of stay expired on 8 August 2017. However, she did not depart and had overstayed since 9 August 2017. On 15 January 2019, she was arrested by the police for theft. She lodged her non-refoulement claim on multiple dates in February 2019. Nevertheless, she did not return the non-refoulement claim form within the time limit and her claim was treated as withdrawn. On 11 January 2021, she was again arrested by the police. Thereafter, on different dates in January 2021, she applied to reopen her non-refoulement claim. On 24 February 2021, her request was granted.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband Rodeo Uldarico Musico (“RUM”). In summary, her stories presented before the Director were as follows. She married her husband on 29 June 2011. RUM’s family was influential. The applicant started working as a foreign domestic helper in Hong Kong in May 2012. In July 2014, she was informed that RUM was addicted to alcohol, drugs and gambling. Thereafter in 2015, RUM sold their new house to repay the debts. The applicant decided to separate with him until he fully settled the loans. In 2017, she received a text message from the loan shark who demanded a repayment of RUM’s loan. She then returned to the Philippines to make arrangement for her daughter. RUM assaulted her for not supporting him. He also found out about the applicant’s affair in Hong Kong and started to threaten her, demanding the remittance of money to repay the loan. Whenever she delayed the remittance, RUM would harass her mother. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 14 April 2021 by the Director (the “Director’s Decision”) and paragraph 8 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 VII C 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, Cap. 383 (“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 dismissed 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) RUM had shown no real intention to harm or even kill her [15]; (ii) it was a private dispute without state involvement [16]; (iii) her past behavior showed that the alleged threat was not imminent or substantial [17]; (iv) state protection would be available to her [18]-[21] and (v) internal relocation was a viable alternative [22]-[24].

The Board’s Decision

8.The applicant appealed to the Director’s Decision to the Board. On 2 July 2021 and 8 July 2021, the Board conducted oral hearings for her appeal.

9.Having considered the evidence, the Board pointed out several material inconsistencies. For example, the applicant was inconsistent about the relationship status with RUM [10]-[12]. Her evidence was also inherently contradictory as to how they purchased the new house and later disposed of it [13]-[16]. She gave different versions about the relationship with RUM, whether it was harmonious, and about the reasons of coming to Hong Kong [17]-[18]. She also had different accounts of the alleged assault from RUM [19]-[20]. In light of these inconsistencies, the Board refused to accept her claimed assault and the domestic violence [21]-[22]. Her evidence on the loans was rejected due to the unexplained inconsistencies [23]-[24]. In addition, the Board also rejected her assertion that RUM’s father was influential [25]. For these reasons, the Board found that the applicant’s claim lacked credibility [26]-[28]. In any event, the Board concluded that both state protection and internal relocation were viable alternatives for her [29]-[36].

10.In assessing the individual grounds, the Board also found that the alleged injuries and/or threats failed to attain the level of severity [41]-[43] and she had never met, not to mention had been hurt by, the loan shark [44]. Meanwhile, there was no state involvement [46]-[49]. As a result, the Board rejected her claim on Torture risk. For the same reasons, the Board also rejected her claim on the remaining grounds of her claim and dismissed her appeal.   

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

11.The applicant filed Form 86 dated 20 August 2021 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant simply said that she made the affidavit without specifying any ground.

DISCUSSION

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.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).

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.The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim.

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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 2^nd day of June 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