Paa Norissa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 846/2019

[2023] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 846 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
	cconsideration 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 15 March 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 last entered Hong Kong on 22 November 2015 as a foreign domestic helper and was allowed to stay until 22 November 2017 or two weeks after the termination of the contract, whichever was earlier.  Her employment contract was prematurely terminated on 2 August 2016.  She did not depart and had overstayed since 17 August 2016.  On 29 August 2016, she surrendered herself to the Immigration Department.  On 17 October 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 stepfather, Edward Garcia, and some police officers.

5.In brevity, the applicant discovered that her stepfather was involved in illegal drug activities in September 2015 when she was at home waiting for the new employment contract.  She decided to report the matter to the police. However, the police did not take her complaint.  Thereafter, Edward found out about her complaint and threatened to kill her.  The same night, the applicant ran way and eventually came to Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 December 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 Edward was groundless.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) state protection would be available to her [16]-[23]; and (iii) internal relocation was a viable alternative [24]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 1 February 2019, the Board conducted an oral hearing for her appeal, during which she was legally represented.

9.Having considered all the evidence, the Board made the following findings.  It found that the applicant’s evidence was inherently inconsistent. In particular, she provided a different description of the threat from Edward; she gave confusing evidence as to whether her mother wanted her to return home; and in light of the Philippines government’s policy of “war on drugs”, it was a public knowledge that the drug dealers would not be spared by the government and the police [19]-[20].

10.In assessing the individual grounds, the Board found that Edward had no intention to cause harm or even kill her; that he was not acting in a public and official capacity; that the ill-treatments, if any, failed to attain the minimum level of severity; and that state protection and internal relocation were both available to the applicant [41]-[57].

11.In these premises, 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 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant said that the Board’s Decision is not good as her fear is still there and her enemy has illegally damaged her house.

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.The Board, for the reasons given above, had rejected her evidence on the facts of her case. The grounds in paragraph 13 above are not valid 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 13^th day of June 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