Baldonado Blanca Recana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 753/2019

[2023] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 753 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 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 visitor on 16 June 2016 and was permitted to remain until 30 June 2016. She did not leave and had overstayed since 1 July 2016. On 5 July 2016, she surrendered to the Immigration Department. On 8 September 2016, 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, Rudy Baldonado.

5.In short, the applicant entered into an arranged marriage with Rudy in 1986. The marriage went well in the beginning. However, after Rudy lost his job, he started to physically abuse the applicant. The abusive acts lasted for around 15 years. Initially, the applicant sought to amend the relationship. However, one night in late 2002, Rudy got drunk and accused her of having an affair with another man. He even took out a knife and chased her. The applicant escaped to her parents’ house. She stayed there from 2002 to 2013, and then went for overseas employments. Nothing happened until 2016 when she worked in Hong Kong. Her friend Gloria, who she met in Hong Kong but later returned to the Philippines, told her over the phone that Rudy found out about her affair in Hong Kong and threatened to kill her if she came back. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 21 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 the level of risk of harm from Rudy was assessed to be low. In elaboration, the Director found that (i) her claimed fear of harm from Rudy was groundless [15]; (ii) the dispute was a private one without state involvement [16]; (iii) her delay in lodging the non-refoulement claim indicated that she was not in imminent danger [17]; (iv) a material part of her claimed fear was based on hearsay information [18]; (v) state protection would be available to her [19]-[23]; and (vi) internal relocation was a viable option [24]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 13 September 2018, the Board conducted an oral hearing for her appeal.

9.The Board recapped the applicant’s personal background and her claim. Having assessed her evidence against the governing legal principles, the Board found that her claim was not substantiated. The Board found that the pain and suffering inflicted by Rudy failed to attain a minimum level of severity [22]-[23]; that the threat from Rudy, if any, was only an outburst of anger but not an intention to cause harm or even kill her as he had ample opportunities to do so but did not materialize in the past 15 years [24]-[25]; and that Rudy only inquired about her whereabouts once since 2002 and he did not harm her family members [26]-[27]. Further, the Board concluded that both state protection and internal relocation were viable alternatives for the applicant [34]-[37].

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 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 that she did not agree with the Board’s Decision.

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.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 4^th day of May 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