Basug Amy Lapada v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1055/2019

[2022] HKCFI 3075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1055 of 2019

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 11 March 2019 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 as a foreign domestic helper on 7 April 2016.  However, her employment contract was prematurely terminated on 14 July 2017.  She did not depart and had overstayed since 29 July 2017.  On 20 October 2017, she surrendered to the Immigration Department.  By way of written significations dated 8 November 2017 and 15 December 2017 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the mayor, Armando Tan, and by Joy Marie Ramos who was a key supporter of Tan and also cohabitated with the applicant’s ex-husband. 

5.According to the applicant, her family were supporters of the former mayor.  She also participated in the campaigns for the former mayor.  One day in 2004, Tan visited their home and reminded her mother of the marriage arrangement between the applicant and Tan’s son.  Her mother disagreed and argued with Tan.  In the end, Tan threatened and demanded them to honor the marriage arrangement, to quit supporting the former mayor and to support him instead.  After the threats, the applicant noticed that some unknown men had been patrolling near her house and once killed her guard dog.  Thereafter, the applicant escaped to Santiago City where she continued to support the former mayor.  One day in 2006, she was kidnapped and assaulted by Tan’s people for her refusal to change her support.  Her report to the police was of no avail. In 2007, she married her ex-husband.  Later in 2008, Mr. Tan won the mayoral election.  One night, the applicant and her sister were attacked by some unknown men who blamed her for not supporting Mr. Tan. 

6.In 2009, her ex-husband left her for Joy whom she got into a fight with.  Joy's family threatened to retaliate if she did not stay away from her ex-husband.  To avoid the threats, the applicant left for Hong Kong.  In around 2017, she learnt from her cousin that her ex-husband wished to reconcile with her, which irritated Joy.  She threatened to kill the applicant.  Thereafter, the applicant’s other cousin returned to the Philippines and was kidnapped by some unknown men who mistook her as the applicant.  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 1 August 2018 by the Director (the “Director’s Decision”).   

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13.1]; (ii) state protection would be available to her [14]-[17]; and (iii) internal relocation was a viable alternative [18]-[20].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 12 November 2018, the Board conducted an oral hearing for her appeal, during which she clarified certain matters of her claim [49].

10.Having considered the evidence, the Board found that the applicant’s claim was not substantiated.  It noted that, in 2004 to 2007, the applicant and her family not only failed to honor the marriage arrangement proposed by Tan but also did not switch their support to Tan.  Nevertheless, Tan only inflicted injuries on the applicant once and did not harm her family at all [52]-[62]. The Board considered that if Tan wished to seriously harm or even kill the applicant he had ample opportunities in the three years.  Yet, he had not done so.  Insofar as the threats from Joy were concerned, the Board observed that the applicant had already married another man in Hong Kong under Islamic law and the chance of her reconciling with her ex-husband did not exist.  As a result, it would not be plausible that Joy would materialize the threats [63]-[64].  In any event, the threats from Joy were based purely on hearsay information [65].  As to her cousin who was mistakenly kidnapped, the Board found that this was hearsay evidence and there was no evidence showing that this kidnap incident was connected to Tan or Joy [66].  In addition, the country of origin information showed that the government was taking practical steps to improve the police’s effectiveness [68].  Finally, the Board considered that internal relocation was available to the applicant [78]-[80].

11.For the aforesaid 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

12.The applicant has filed Form 86 dated 18 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant said the Board’s Decision is not satisfactory. She did not raise any ground.

DISCUSSION

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

18.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.

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

CONCLUSION

20.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 5^th day of October 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