Case Document

100%Judiciary

HCAL 2292/2018

[2022] HKCFI 2879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2292 OF 2018

BETWEEN
	Aligo Alma Carlos	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant 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 15 October 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”), the application is to be 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 entered Hong Kong as a foreign domestic helper and, with the effect of her last employment contract, she was allowed to stay until 10 January 2018. However, her employment contract was terminated prematurely on 22 February 2016. She did not depart and had overstayed since 8 March 2016. On 31 May 2016, she surrendered to the Immigration Department. On 23 August 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 Nestar Aligo Jr.

5.In brevity, the applicant married Nestar in 1999. Since 2009, she had been working as a foreign domestic helper. In 2016, she had an affair. Upon knowing her affair, Nestar threatened to kill her. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 19 March 2018 by the Director (the “Director’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 if refouled. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) the fact that her claimed threat would materialize a remote possibility rather than a real chance [13]; (iii) her husband’s threats were localized [14]; (iv) state protection would be available to her [15]-[21]; and (v) internal relocation was a viable alternative [22]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 July 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [46]-[64].

9.Having considered the evidence, the Board identified several inconsistencies in her claim. For example, she was inconsistent as to the forms and frequency of her husband’s threats [67]-[68]; the delay in seeking protection undermined her credibility [69]-[70]; her behavior of contacting her husband contradicts with the behavior of someone who feared a risk of harm [71]; and her husband had never inflicted any harms on her or her family [72]. Assessing these evidence accumulatively, the Board refused to accept the applicant’s claim [74]. Her appeal was therefore dismissed.

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

10.The applicant filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant said she is not satisfied with the Board’s Decision. She does not like to go back to her own country and her life will be in danger.

DISCUSSION

12.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).

13.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.”

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

15.The reasons set out in paragraph 11 are not valid grounds to challenge the Board’s Decision.

16.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.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.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 20^th day of September 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 September 2022 Aligo Alma Carlos Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 September 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10938/18/3/390/F664 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 243/18 (Formerly RBCZ 13209/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)