Retrita Liziel Libang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 665/2019

[2022] HKCFI 2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 665 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:

1.   Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

2.   The applicant has to take out the originating summons within 14 days after this order in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had put down the date of the Board’s Decision as 24 August 2018, which will be rectified below.

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, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision should be 14 December 2018 instead of 24 August 2018.

The applicant

4.The applicant is a national of the Philippines.  She last entered Hong Kong on 9 January 2010 as a visitor and was permitted to stay until 14 January 2010.  She did not depart and had overstayed since 15 January 2010.  On 18 February 2011, she was arrested by the police.  On 18 April 2011, she lodged a torture claim, which was rejected on 31 July 2013.  On 3 September 2013, she lodged a non-refoulement claim.  Her claim was assessed on all applicable grounds other than the torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by (i) her husband for her affair with her boyfriend in Hong Kong; (ii) three moneylenders for her mother’s loan; and (iii) the Philippine government for her possession of drug conviction. 

6.The background facts presented to the Director were summarized as follows.  The applicant developed an extramarital relationship with her boyfriend in Hong Kong.  In 2008, her husband found out about the affair and threatened to sue her for bigamy.  Starting in 2009, her mother took out loans from three different moneylenders who later posed death threats for her family’s default in repayments.  In 2012, she was also threatened by her husband with a bigamy lawsuit when he found out that she gave birth to a child in Hong Kong with her boyfriend.  Further, she feared that she could be killed by the Philippine government as the then president Duterte declared war against drug addicts.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out at paragraph 8 of the Notice of Decision dated 10 November 2017 by the Director (the “Director’s Decision”) and paragraph 22 of the Board’s Decision.   

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

8.By the Director’s Decision, the Director dismissed the applicant’s claim for she would not face any real risk of harm upon refoulement.  In elaboration, the Director found that (i) the absence of past ill-treatments from the alleged enemies indicated no future risk of harm [19]; (ii) the disputes were merely family and monetary disputes without state involvement [20]; (iii) state protection would be available to her [21]-[25]; and (iv) internal relocation was a viable alternative [26]-[28].    

The Board’s Decision

9.The applicant appealed to the Director’s Decision to the Board.  On 24 August 2018, the Board conducted an oral hearing for her appeal.  The Board noticed that, on her own evidence, the applicant was never ill-treated by anyone.  The moneylenders never pursued her for repayments and her husband did not react emotionally about her affair [25].  It also stated that there was no merit in her non-refoulement protection claim based on her previous conviction for possession of dangerous drugs [26].

10.The Board also considered the country of origin information and concluded that state protection was available to her [34]-[35].  Further, the Board found that the applicant’s claim was based on private disputes without state involvement [45].  In any event internal relocation was available to her [46]-[49].

11.For the above reasons, the Board rejected her claim and dismissed her appeal.  

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

12.The applicant filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

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

15.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).

16.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.”

17.It seems that the Board, in its Decision, had not dealt with her ground that she feared that she would be killed by the Philippine government because of her previous convictions of possession of dangerous drug in Hong Kong. This issue was dealt with by the Director in paragraph 24 of the Director’s Decision. The Board has to make a finding of the fact by reference to the country of origin information as this issue may not be covered by state protection or internal relocation. Although the Director had doubt that the Philippine government would take up this issue for her conviction in Hong Kong 4 years ago, the Board would have to affirm specifically this factual issue or make its own finding as the appeal is a hearing de novo.

18.The applicant succeeds to show that she has a realistic prospect of success in her proposed judicial review.

CONCLUSION

19.I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant has to take out the originating summons within 14 days after this order in accordance with O.53, r. 5 of the RHC.

Dated the 19^th day of July 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