Tolentino Girlie Talamor v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 877/2019

[2023] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 877 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 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing and her application is dealt with 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 on 28 November 2017 as a foreign domestic helper and was permitted to remain until 9 November 2019 or two weeks after the termination of the employment contract, whichever was earlier. Her employment contact was prematurely terminated on 1 December 2017. She did not depart within the time limit and had overstayed since 16 December 2017. On 16 January 2018, she was arrested by the police. On 17 January 2018, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by a money lender called Mr. Chan.

5.Briefly stated, the applicant’s claimed fear of harm from Mr. Chan was due to her inability to settle the two loans she took out from Mr. Chan to pay for her grandmother’s medical expenses. She borrowed the loans in May 2017. However, after her employment contract was terminated, she was unable to fulfil the payment obligations. Feared that she would be harmed or killed by Mr. Chan or the rebels he would hire, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 5 of the Notice of Decision dated 13 July 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 upon her refoulement was assessed to be low. In elaboration, the Director found that (i) Mr. Chan’s behaviors had shown no real intention to cause harm or even kill her [10]; (ii) state protection would be available to her [11]-[15]; and (iii) internal relocation was a viable alternative [16]-[17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [6].

9.Having considered the evidence, the Board rejected the applicant’s claim. In particular, the Board noted that the applicant’s oral evidence was vague and lacked specifics. It was also inherently inconsistent with those in her written statement or before the Director. For example, the applicant provided confusing accounts as to her capacity in these loans, whether she was a guarantor to her sister’s loan agreement or whether it was a joint loan agreement signed by both of them [24]-[25]. As this remained the crux of her claim and the applicant was unable to provide cogent explanations for the discrepancies, the Board considered it damaging to her credibility [26]. Further, the applicant did not take any steps to inquire her sister’s whereabouts after she claimed that her sister went disappeared. It indicated that she was not fearful that her sister disappeared due to the outstanding loans [27]. In addition, she was unable to provide any details of the loan sharks but only a bare assertion that they were powerful [28].

10.In light of the aforesaid findings, the Board concluded that the applicant’s claim was unsubstantiated and thus dismissed her appeal.

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

11.The applicant has filed Form 86 dated 1 April 2019 for leave to apply for judicial review of the Board’s Decision.

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

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.The Board, for the reasons above, refused to accept her evidence in support of her claim. 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 18^th day of July 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