Emperador Edarlyn Arcalas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 309/2022

[2022] HKCFI 2093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 309 of 2022

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 March 2022 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 15 September 2019 as a foreign domestic helper. On 7 August 2020, she was arrested by the police for theft. On 8 January 2021, her employment contract was terminated prematurely and she was required to leave on 22 January 2021. On 26 April 2021, she was sentenced to two years’ imprisonment for the said offence. She is currently detained at Castle Peak Immigration Center. She lodged a non-refoulement claim on 14 May 2021, which was based on the fear that, if refouled, she would be harmed or killed by a former judge and congressman called Bautista due to a land dispute.

5.According to the applicant, under the verbal agreements, her grandparents’ lands were transferred to her and her relatives in 2005. She built a house thereon and had lived there since then. In June 2012, she received a summons which asked her to demolish her house as Bautista purchased the land. Unable to mediate this matter with Bautista and subsequently lost the battle in court, the applicant posted cursed words against him and vowed to campaign against him from then on. A few days later, the applicant received unknown death threats which lasted for a month. In February 2013, the applicant’s partner was shot dead. Thereafter, she discarded her Philippine sim card and deactivated her Facebook account. On 7 October 2015, the applicant’s brother was found dead on the street. Later in June 2019, while the applicant was driving to the market during her vacation back in the Philippines, some unknown men followed her and shot her car. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 14 September 2021 by the Director (the “Director’s Decision”) and paragraph 13 of the Board’s Decision.

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 dismissed the applicant’s claim on the basis that Bautista had shown no real intention to seriously harm or kill her upon her refoulement. In elaboration, the Director found that (i) her alleged risk of harm was based on hearsay information [11]; (ii) the absence of past ill-treatments indicated no or low future risk of harm [12]; (iii) the acts of Bautista showed that he had never intended to harm or kill her [13]; (iv) alternatively, his power and influence were localized [14]; (v) the applicant’s behaviors were inconsistent with someone who had a fear of harm [15]; (vi) state protection would be available to her [16]-[20]; and (vii) internal relocation was a viable alternative [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 February 2022, the Board conducted an oral hearing for her appeal, during which she clarified and supplemented her claim [8].

9.Having considered the applicant’s evidence, the Board found that her claim was incredible, unreliable and implausible [40]. Specifically, the Board highlighted the following matters. Despite the applicant mentioned several incidents that contributed to her fear, none of which were supported by evidence that they were orchestrated by Bautista due to the applicant’s unfavorable messages on Facebook [42]. It was illogical that Bautista, if as influential as claimed, would compensate the applicant and her family for the land when they could not produce the title documents [43]. On the applicant’s own evidence, she posted the said messages while the offer to settle the dispute from Bautista still stood and the offer remained open even after her messages [44]. It was also unreasonable that Bautista would kill the applicant’s partner eight months, and her brother three years, after the land dispute was resolved [45]-[46]. In addition, the Board found that it was implausible that Bautista still had adverse interests against the applicant ten years after the land dispute was settled [48]. Meanwhile, until now, the applicant’s family had been living in the home village worry free [49]. The Board was not satisfied that Bautista still intended to kill the applicant or that her conducts exhibited a real fear of harm [50]-[54]. Finally, the Board also found that the applicant’s versions of events were inconsistent [55]-[58]. For these reasons, the Board concluded that the applicant would not face any risk of harm if refouled.

10.In any event, state protection and internal relocation were both available to the applicant [67]-[68]; [89]-[91]. Thus, 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 6 May 2022 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant complains that there is no transparency of the Board.

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.The facts of her case had been considered by the Director and Board. The applicant’s complaint in paragraph 12 above is not a valid ground to challenge the Board’s Decision. The appeal hearing before the Board is not open to the public as provided under the Ordinance[1].

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 25^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