Celis Leonora Sacor v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2183/2018

[2022] HKCFI 2492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2183 of 2018

BETWEEN

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 7 September 2018 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”), her application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Philippines. She last entered Hong Kong as a foreign domestic helper on 9 July 2014. However, her employment contract was terminated prematurely on 9 November 2015. She did not depart within the limitation of stay and had overstayed since 24 November 2015. On 19 January 2016, she surrendered to the Immigration Department. On 14 April 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 and her creditor.

5.According to the applicant, on 29 January 2011, in order to pay for her application for employment in Hong Kong, she signed a loan agreement with her creditor using her husband’s property as a mortgage for the loan. After the applicant started working in Hong Kong, the salary she received was only sufficient for the interest payments. In May 2011, her employment contract was terminated and she was unable to repay the principal. In late 2013, during her vacation back to the Philippines, the creditor visited her and demanded for repayment of the loan. She threatened to sue the applicant if the applicant defaulted the payment again. In October 2015, her husband found out about the debt and the mortgage. He threatened to prevent her from seeing their children if she did not settle the debts. In December 2016, her husband also informed her of his knowledge about her forgery of the mortgage document. 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 1 September 2017 by the Director (the “Director’s Decision”) and paragraph 11 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, 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 she would not face any real or substantial risk of harm upon refoulement. In elaboration, the Director found that (i) the absence of ill-treatments from her husband and her creditor indicated an unlikelihood of future risk of harm [14]-[15]; (ii) there was no evidence that her husband and her creditor were as influential as she claimed [16]-[17]; (iii) state protection would be available to her [18]-[21]; and (iv) internal relocation was a viable alternative [22]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 July 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [13].

9.Having considered the evidence, the Board found that she was evasive, vague and inconsistent with regard to the claimed loan and the past incidents [20]. For example, the applicant was inconsistent as to whether she signed the loan in the creditor’s company [22]-[24]. She also claimed that she borrowed the loan from a bank, which she did not offer cogent explanation to resolve this inconsistency [25]-[28]. Thus, the Board cast doubt on her evidence in relation to the loan and the mortgage [29]. Further, the Board noted that she provided contradictory evidence in relation to the circumstances of signing the loan [30]-[35]. She was also unable to offer any details of the loan agreement [36]-[40]. She was evasive in relation to the communications with her creditor [41]-[47]. The Board also considered that the documents submitted which showed that she faked her husband’s signature did not support her assertion that these documents were to secure the loan [51]-[71]. Meanwhile, the Board observed that her evidence in relation to her trips to the Philippines, the circumstances in relation to her husband’s awareness of the loan as well as his threats to the applicant were also inconsistent [72]-[84]. In light of these inconsistencies, the Board refused to accept the applicant’s version of the past events [86]-[89].

10.For the above 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 filed Form 86 dated 10 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant enclosed the Board’s Decision without specifying any ground.

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.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.”

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

16.There is no valid reason to challenge the Board’s Decision from the applicant.

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 11^th day of August 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