Cruz Jennylyn Manayan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 434/2019[2023] HKCFI 663

Court

High Court CFI

Date21 Mar 2023

Judge—

Case Document

100%Judiciary

HCAL 434/2019

[2023] HKCFI 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 434 of 2019

BETWEEN
	Cruz Jennylyn Manayan	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 present 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 21 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The application requested an oral hearing in Form 86. She appeared before the Court on 24 October 2022.

The applicant

3.The applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper on 27 July 2016 and was permitted to stay until 27 July 2018 or two weeks after the termination of the contract, whichever was earlier. On 23 October 2016, her employment contract was terminated prematurely. However, she did not depart within the limitation of stay and had overstayed since 7 November 2016. On 8 November 2016, she surrendered herself to the Immigration Department. On the same date, 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, Richard Cruz.

4.The applicant married Richard in 1999. Ever since their marriage, she had been subjected to Richard’s abusive acts because Richard had drinking and drug problems. Some notable incidents mentioned in her claim were that she was once physically assaulted by Richard, leading to the premature birth of their baby who only survived for a day; that Richard suddenly showed up in the market where the applicant was and assaulted her with bare hands; that there was a serious fight among the applicant, Richard and the applicant’s father in 2003. While the applicant sought to escape by working overseas and she also reported to the police, both options turned out to be in vain and she continued to suffer the physical abuse from Richard. The applicant sustained mental suffering and attempted to kill herself. She later regretted the suicidal attempt for the sake of her children. In 2009, Richard hit the applicant with his motorcycle. The applicant then decided to work in Hong Kong. She first came to work in Hong Kong from 2009 to 2011. However, when she returned home in June 2011, Richard pointed a gun at her. Thereafter, from 2011 to 2016, the applicant had been working in Hong Kong. She returned home twice in 2014 and 2016 and, since she kept a low profile on these occaseions, she did not encounter Richard. As she was told that Richard had been threatening to kill her if she returned, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 26 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the claimed fear of harm from Richard was groundless. In elaboration, the Director found that (i) the past experience did not prove an existence of injuries attaining a minimum level of severity [11]-[12]; (ii) the threats from Richard, if any, were localized [13]; (iii) state protection would be available to her [14]-[16]; and (iv) internal relocation was a viable option [17]-[18].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 12 December 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [7(viii)]; [30].

8.The Board recapped the applicant’s personal background and her claim [8]-[28]. It also considered the applicant’s oral evidence [29]-[41]. Having assessed all the evidence, the Board found that the applicant’s accounts on the domestic violence were consistent with the country of origin information (“COI”) and thus accepted that she and Richard had an acrimonious marriage and separated in 2009 [43]-[46]. However, the Board refused to accept that the applicant was a truthful witness in relation to the accounts on the incidents occurred since 2009. In particular, the Board noted that her oral evidence was inconsistent with those in her written statement, such as the gun pointing incident [47]-[48]. It also found her evidence on her three returns back to the Philippines vague and unpersuasive [49]. Meanwhile, despite the claimed assaults and the fact that her family were still in the Philippines, the applicant was unable to produce any documentary evidence for her claimed injuries [50]. The Board further cast doubt on her delay in seeking protection in Hong Kong [51]. Nevertheless, even if her encounters with Richard in the past ten years were true, the Board found that the COI showed that state protection to women who suffered domestic violence was available in the Philippines [52]-[56].

9.For the aforesaid 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

10.The applicant has filed Form 86 dated 15 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application and also her statement attached to Form 86, the applicant has raised the grounds below.

(1)  The Board was in breach of procedural fairness as it had fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s Decision is unreasonable or irrational in the public sense or as a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant. The Board decided not to have a hearing. However, it failed to invite her to make written submission.

(5)  The Board had relied on the source of news which is not officially recognized or it is simply hearsay. It had also relied on some cases which are fairly outdated. That is why it had made groundless speculation that it is safe for her to return to her country.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she understands the Board’s Decision and the hearing before the Board is fair and that she is not satisfied with the Board’s Decision because the Board did not believe her story.

14.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.”

15.The grounds as set out in paragraph 11 and paragraph 13 above do not assist her application. According to the Board’s Decision, the applicant had attended a hearing on 12 December 2018[1]. All of the grounds are her bare assertions or comments without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

16.There is no valid ground from the applicant 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 leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 21^st day of March 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 21/3/2023 Cruz Jennylyn Manayan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10712/18/3/164/F632 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3813/17 (Formerly RBCZ 11233/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)