Digma Arlene Baying v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 983/2019

[2023] HKCFI 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 983 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 4 April 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 May 2016 and did not depart after her limitation of stay expired.  On 13 June 2016, she surrendered to the Immigration Department. On 4 August 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 Marlo Digma. 

5.In brevity, the applicant’s claim arose out of a domestic violence.  She stated that her husband had drinking problem and, whenever he got drunk, he became abusive towards the applicant.  Initially, for the sake of her children, she did not leave her husband.  Meanwhile, she also did not report the abusive acts to the police as the nephew of her husband was a police officer.  Later, she decided to work overseas to avoid her husband.  Yet, she still received multiple death threats from her husband.  In 2015, she flew to Hong Kong to work as a foreign domestic helper.  While in Hong Kong, she developed a romantic relationship with a man.  However, her husband’s sister, who was also working in Hong Kong, saw the applicant and the man.  Since then, her husband’s death threats had become more frequent.  Eventually, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 March 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 her claim.  In elaboration, the Director found that (i) the claimed injuries failed to attain a minimum level of severity and her perceived harm or ill-treatments was not as imminent or substantial [11]-[12]; (ii) state protection would be available to her [14]-[15]; and (iii) internal relocation was a viable option [16].

The Board’s Decisions

8.The applicant appealed the Director’s Decision to the Board.  On 1 April 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [19]. 

9.Having considered the applicant’s evidence given before the Director [8]-[17] and those before the Board [18]-[29], the Board found that the applicant’s evidence on her contact with Marlo since she left the Philippines contained significant discrepancies; that the applicant’s explanation on her unwillingness to receive medical treatments or to seek police protection was unpersuasive; that the lack of medical evidence and police records undermined her credibility; that her alleged continuous threats from Marlo was without merits; and that the country of origin information indicated that state protection to women who were victims of domestic violence was available [33]-[42].

10.In light of the aforesaid findings, 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 April 2019 for leave to apply for judicial review of the Board’s Decision. In her affidavit in support of her application, the applicant said she wants to appeal because she is not content with its decisions.

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 scrutin.

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 ground in paragraph 11, supra is not valid 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 27^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