Allupay Maricel Galapia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 738/2019

[2023] HKCFI 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 738 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 26 February 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 11 January 2015. However, her employment contract was terminated prematurely on 27 November 2015. She was required to leave within two weeks. However, she did not depart and had overstayed since 12 December 2015. On 20 January 2016, she surrendered herself to the Immigration Department. On 15 February 2016, she sought to lodge a non-refoulement claim which was finally made on 17 March 2016. Her claim was made on the basis that, if refouled, she would be harmed or killed by her family members due to her refusal of a forced marriage.

5.In short, the applicant claimed that her family members forced her to marry a man called Sisenado in December 2014. She refused. Thereafter, her mother and uncle had been assaulting her with wooden sticks for consecutive three days. Sisenado also pointed a gun at her and threatened to kill her if she would not marry him. As the threats continued, after she left for Hong Kong to continue her employment, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 9 March 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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[17]; (ii) the threats, if any, were localized [19]; (iii) state protection would be available to her [20]-[26]; and (iv) internal relocation was a viable alternative [27]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [11]-[12].

9.The Board found that the applicant’s evidence was inherently inconsistent, contradicted with the country of origin information (“COI”), and her explanation unpersuasive [44]. In particular, the Board noticed that the applicant omitted the assaults from her mother and uncle during the hearing; that she was inconsistent with the sustained injuries and the subsequent medical treatments; that she provided different accounts as to the threats made via telephone when she returned to Hong Kong; that she omitted the threats from Sisenado; and that the COI showed that Siesenado was shot to death. In light of these inconsistencies and material omissions, the Board concluded that the applicant fabricated her claim to stay in Hong Kong.

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 18 March 2019 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 opposed the Board’s Decision because her life is not safe in her own country.

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.The Board had assessed her case and did not accept her evidence on the facts of her case. There is no valid reason 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 6^th day of April 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