Chavez Retche Acala v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 685/2023

[2023] HKCFI 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 685 of 2023

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:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 February 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 10 May 2023 is late for 8 days only, the deadline being on 2 May 2023. I shall deal with this issue below.

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 foreign domestic helper on 16 January 2018 and her permission to stay was later extended to 16 January 2020, or two weeks after the termination of her employment contract.  On 28 October 2018, her employment contract was prematurely terminated.  She did not depart within the time limit and had overstayed since 12 November 2018.  On 30 December 2020, she surrendered to the Immigration Department.  On 28 December 2020 and 8 March 2021, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by six people who committed robbery with her husband as her husband took away the stolen properties. 

5.According to the applicant, when she returned to the Philippines for vacation in August 2017, her husband, who worked as a security guard in a bank, told her that he had committed robbery with six other men.  Moreover, he handed a bag containing the stolen properties to the applicant for safekeeping.  The applicant had kept the bag in the house.  In September 2017, her husband escaped with the bag without telling her.  Shortly after, six men visited her house looking for her husband.  They threatened to kill the applicant if she didn’t reveal her husband’s location.  A few days later, they visited and made death threats again.  On both occasions, they did not physically harm the applicant.  Out of fear, the applicant escaped to Davao city and Manila before eventually seeking protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 September 2021 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.  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 [14]-[16]; (ii) state protection would be available to her [17]-[20]; and (iii) internal relocation was a viable option [21]-[22]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 26 April 2022, the Board conducted an oral hearing for her appeal.

9.The Board found that, on the applicant’s own evidence, her enemies only threatened her on two occasions.  They did not harm her physically nor did they continue to harass her after September 2017 [35].  She also stated that, after she escaped, the enemies visited her house and enquired her mother of her husband’s whereabouts.  They also did not harm the applicant’s mother [37].  In these premises, there was no evidence that the death threats would be materialized [37].  The Board further considered that, taking the applicant’s evidence to the highest, the enemies only intended to locate her husband to recover the stolen properties without possessing any intention to harm or even kill her [38]-[39].  In addition, it found that the applicant’s fear of being located by the enemies was without evidential support or any objective evidence [40].  Meanwhile, the threats did not reach the requisite level of severity [42].

10.In any event, the Board found that state protection and internal relocation were both available to the applicant [46]-[66].  As a result, 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 10 May 2023 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant said she still cannot return to her country as her enemies are hunting her.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 2 May 2023. The delay is only 8 days. I shall consider the merits of the applicant’s case.

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 had considered applicant’s evidence and found that she failed to establish that she will be subjected to real risk or harm if she returns to her country. State protection is available to her and internal relocation is an option open her. There is no valid ground 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.Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 30^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