Dagdagen Virginia Bagangao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2483/2018

[2022] HKCFI 3264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2483 of 2018

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 2 November 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 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 worked in Hong Kong as a foreign domestic helper.  Her last employment contract was terminated prematurely on 10 July 2013 and she was required to leave on or before 24 July 2013.  She did not depart and had overstayed since 25 July 2013.  On 6 June 2014, she was arrested by the police for overstaying.  On 16 June 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the New People’s Army (“NPA”).

5.In short, the applicant claimed that NPA members had been extorting food and money from her family since 2005.  They threatened to kill the applicant’s family if her father did not give them food and money.  To avoid the threats being materialized, the applicant escaped to Hong Kong.  In 2013, as her father told her the situation did not change, the applicant decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 7 December 2017 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:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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 because it was unlikely that she would face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[15]; (ii) state protection would be available to her [16]-[20]; and (iii) internal relocation was a viable alternative [21]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 5 June 2018, the Board conducted an oral hearing for her appeal,

9.The Board considered that the centerpiece of the applicant’s claim was inherently inconsistent and it highlighted the material inconsistencies [29]-[36].  The Board also assessed the country of origin information and found that state protection against the NPA was in place [45]-[57].  Meanwhile, the Board found that the past ill-treatments from the NPA was of low intensity and frequency [75].  In addition, when the applicant stayed in other areas of the Philippines from 2005 to 2010, she had encountered no problems with the NPA [76].  Besides, the applicant’s conducts were inconsistent with someone who was genuinely in need of protection [77]. 

10.As there was no evidence showing that there was state involvement, that the applicant sustained injuries of sufficient severity, and that the government of the Philippines was unable to protect the applicant [78]-[86], the Board concluded that the applicant’s claim was unsubstantiated in all applicable grounds.

11.The applicant’s appeal was therefore dismissed.

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

12.The applicant has filed Form 86 dated 6 November 2018 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 raise any specific 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 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 25^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