Diocares Marilou Bangsoy v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2504/2018

[2022] HKCFI 3395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2504 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 5 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 last entered Hong Kong on 2 November 2016 as a visitor and was permitted to stay until 16 November 2016. She did not depart and had overstayed since 17 November 2016. On 12 December 2016, she surrendered to the Immigration Department. On 8 March 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her uncle, Solomon Bangsoy.

5.According to the applicant, her father passed away when she was young and thus their family relied on the financial support of Solomon. The applicant claimed that Solomon was a member of the New People’s Army (“NPA”). In around 2014, she borrowed a loan from the bank using Solomon’s land as a mortgage. However, during her time in Hong Kong, she did not remit all the money to Solomon to settle the loan as she needed to afford her mother and children’s medical expenses. In 2016, the applicant was assaulted by Solomon for not repaying the loan, a default which resulted in the confiscation of his land. She then escaped to another village before eventually 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 (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 as the level of risk of harm upon 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 [14]; (ii) there was no evidence that Solomon had real intention to harm or even kill her [15]; (iii) there was also no evidence that Solomon could locate her everywhere in the Philippines [16]; (iv) state protection would be available to her [17]-[21]; and (v) internal relocation was a viable alternative [22]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 June 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence through the assistance of an interpreter [13].

9.In light of the coherency in the applicant’s evidence, the Board accepted her evidence on the past events [31]-[36]. However, the Board found that there was no state involvement [45]-[48]. On this basis, the Board rejected the applicant’s claim on Torture risk [51]. Further, the Board considered that internal relocation was a viable option and thus her claim under BOR 3 risk also failed [58]-[60]. In addition, state protection was available to her [66]-[68]. The applicant’s claim for Persecution risk was therefore failed. Based on these findings, the Board also rejected the applicant’s claim on BOR 2 risk.

10.In these circumstances, the Board dismissed the applicant’s appeal.

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

11.The applicant has filed Form 86 dated 8 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant said she rejected the Board’s Decision as it disregarded her dangerous situation.

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 Decisions 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.The ground in paragraph 12 above is only her bare assertion without any evidence in support. 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 14^th day of November 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