Enriquez Mary Janet Aguilar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 851/2019

[2023] HKCFI 1503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 851 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 8 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 last entered Hong Kong on 2 March 2016 as a visitor and was permitted to stay until 9 March 2016.  She did not depart and had overstayed since 10 March 2016.  On 16 March 2016, she surrendered to the Immigration Department.  On 21 April 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her father and ex-boyfriend, Abdul Abubakar.

5.In summary, the applicant’s fear of harm from her father and Abdul originated from their disapproval of her marriage with one Mr. Ng in Hong Kong.  Considering the past assaults when she was in high school, she feared that her father would assault her again.  In addition, Abdul claimed to be a member of a terrorist group and, as she promised to marry him, she feared that he would be irritated and harm her.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 27 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 her father and ex-boyfriend was groundless.  In elaboration, the Director found that (i) the feared ill-treatments were unlikely to materialize based on the circumstances [19]-[20]; (ii) state protection would be available to her [21]-[23]; and (iii) internal relocation was a viable option [24]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 22 November 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [16].

9.Having heard the applicant at the hearing, and considered all the evidence, the Board found that there were glaring contradictions in her claim. In particular, she changed her evidence as to whether she indeed had a boyfriend before coming to Hong Kong; she was vague about the details of the relationship with Abdul; she was inconsistent about Abdul’s background; and her reasons for staying in Hong Kong to take care of Mr. Ng directly contradicted with her non-refoulement claim [69].  In these premises, the Board concluded that the applicant’s claim was fabricated and thus dismissed her claim and her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant did not raise any specific ground.

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.

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 Board, for the reasons given above, had rejected the applicant’s evidence on the facts of her case. She does not have any valid reasons to challenge the Board’s Decision.

16.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.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.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