Pascua Jenny Lyn Domingo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2553/2018

[2022] HKCFI 3681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2553 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 9 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 as a foreign domestic helper in 2015 and was permitted to remain until 13 August 2017 or two weeks after the termination of the employment contact, whichever was earlier.  Her employment contract was terminated prematurely on 12 September 2015.  She did not depart and had overstayed since 27 September 2015.  On 25 February 2017, she was arrested by the police for overstaying.  On 13 March 2017 and 14 March 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 her husband Kristian Pascua.

5.According to the applicant, since 2007, her husband had been physically abusing her whenever he was drunk.  Her husband was an artist and was popular among the officials who were involved in drug business.  In 2015, unable to cope with the domestic violence, the applicant reported her husband’s drug dealing to the police.  While her husband and his friends were arrested, they were subsequently released after detention for two days.  One night, two men fired gunshots at the applicant’s house.  Out of fear, she fled to Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 14 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 as her claimed fear of harm was groundless.  In elaboration, the Director found that (i) the dispute was within a domestic context and she had been out of touch with her husband for two years when she was arrested by the police in 2017 [12]; (ii) her husband did not show any real intention to harm or kill her [13]; (iii) the threats, if any, were localized [14]; (iv) state protection would be available to her [15]-[22]; and (v) internal relocation was a viable alternative [23]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 October 2018, the Board conducted an oral hearing for her appeal.

9.Despite the Board noted that domestic violence was widespread in the Philippines, it refused to accept that the applicant was a victim of domestic violence [16].  At the outset, the Board noted that the applicant provided inconsistent evidence on the material aspects of her claim [17]-[26].  She was invited to clarify the inconsistencies but unable to do so [27]-[29].  The Board also observed that the applicant’s evidence on the shooting incident was vague, lacked details and unpersuasive [32]-[33].  She contradicted herself as to why her husband assaulted her [34]-[35].  In addition, she provided inconsistent accounts as to where she lived upon her return between 2013 to 2015 [36]-[41] and as to her last contact with her husband [44]-[47].

10.The Board noticed that the applicant’s evidence on the details of the domestic violence was also inconsistent and problematic [49]-[61].  In this light, the Board refused to accept that she had suffered a constant domestic violence [62].  Meanwhile, her evidence on the alleged report to the village council was inconsistent and unsatisfactory [63]-[67].  Further, her delay in seeking international protection undermined the credibility of her claim [68]. As a result, the Board found that her claim was unsubstantiated.  Besides, the recent country of origin information (“COI”) showed that the state would not tolerate the drug dealers and users [71].  In any event, the COI proved that internal relocation was a viable option [73]-[80].

11.For the above 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 13 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant enclosed the bundle of hearing without stating 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 Decisions 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 14^th day of December 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