Come Erlyn Ebena v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 328/2019

[2023] HKCFI 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 328 of 2019

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 31 January 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 entered Hong Kong as a foreign domestic helper on 30 June 2012. However, her employment contact was terminated prematurely on 17 August 2012. She was required to leave within two weeks after the termination of her contact. Yet, she did not depart and had overstayed since 1 September 2012. On 9 July 2015, she surrendered to the Immigration Department. On 1 February 2016 and 2 March 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the loan shark.

5.In short, the applicant borrowed a loan from the loan shark to support her application for overseas employments in 2010. However, she did not repay the loan and had only remitted her salary to the loan shark once. The loan shark started to chase for repayments. She called the applicant’s cellphone in Hong Kong because the applicant’s son revealed the contact to the loan shark. The loan shark also threatened the applicant’s ex-boyfriend. In January 2017, the applicant was informed that her son was assaulted by the loan shark’s relatives. Facing the constant death threats, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 2 June 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 as her claimed fear of harm from the loan shark was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments towards the applicant and her family members indicated an unlikelihood of future risk of harm [12]; (ii) her problem with the loan shark was a private one without state involvement [13]; (iii) state protection would be available to her [14]-[16]; and (iv) internal relocation was a viable alternative [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 June 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [48].

9.The Board noted that it was implausible for the loan shark to lend the applicant the said sum at such a high interest rate solely on the proof of the applicant’s employment contract. It noticed that, in light of the doubt, the applicant changed the story of how she borrowed the loan [52]. The Board considered it to be unreasonable why the applicant would not sell her house in Calapan City to settle the loan [54]. It also observed that the applicant gave contradictory accounts as to her whereabouts during her second vacation back home in May or June 2012 [56]. It considered the applicant’s evidence on the threats of the loan shark problematic [57]-[58]. It refused to accept that the loan shark would lend the applicant that sum of the loan in light of her low income [59]-[61]. It further rejected the applicant’s assertions of the lack of state protection and the unavailability of internal relocation [62]-[65] as both alternatives were available to the applicant to negate the claimed risk of harm [78]-[87].

10.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

11.The applicant has filed Form 86 dated 4 February 2019 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 still has not paid back the loan and the creditor wants to kill her.

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 not valid 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 7^th day of March 2023

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