Beo Joy Epalan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2498/2018

[2022] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2498 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 8 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 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 2 April 2016 and was permitted to remain until 2 April 2018.  However, her employment contract was terminated prematurely on 17 April 2016 and she was required to leave on or before 1 May 2016.  She did not depart and had overstayed since 2 May 2016.  On 13 May 2016, she surrendered to the Immigration Department.  On 11 July 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by Valdez Tin, a land developer, due to a land dispute.

5.According to the applicant, Valdez offered to buy their land for development purpose in 2015.  However, the applicant’s mother-in-law refused to accept his offer.  Since then, her family had encountered constant threats from Valdez.  One night in 2016, someone set the applicant’s house on fire. Believed that her mother-in-law’s enemies would also kill her, she fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 27 February 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:

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 her claimed fear of harm was groundless.  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]; (ii) state protection would be available to her [15]-[16]; and (iii) internal relocation was a viable alternative [17]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 12 July 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [45].

9.The Board sought clarifications on certain material aspects of the applicant’s claim [45]-[63].  Having considered all the evidence, the Board found that the crux of her claim, i.e., the land dispute, was vague and unconvincing [66].  The Board also found that the claimed fear of harm from the land dispute contained discrepancies in her written statements and oral evidence [68].  Further, the Board noted that the applicant was never inflicted with any harm [69].  In these premises, the Board refused to accept that the applicant was a credible witness [71].

10.On the basis of lack of credibility, 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 7 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said she cannot go back to her country as it is not safe to do so.

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 Decision 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.As to the ground in paragraph 12 above, this reason had been considered and rejected by the Board. There is no valid ground to challenge the Board’s Decision.

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 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