Peniosan Alice Lub I v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 122/2023

[2023] HKCFI 2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 122 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:

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 December 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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.According to the record, the applicant was detained by the Immigration Department, but has been discharged.

The applicant

4.The applicant is a national of the Philippines.  She entered Hong Kong as a foreign domestic helper.  Her last employment visa permitted her to stay until 26 November 2020 or two weeks after the termination of the employment contract, whichever was earlier.  On 20 December 2020, her employment contract was prematurely terminated.  However, she did not depart within the time limit and had overstayed since 4 January 2021.  On 19 January 2022, she was arrested by the Immigration Department.  On 30 March 2022, she lodged a non-refoulement claim on the basis of being harmed or killed by her creditor due to an outstanding loan.

5.In brevity, the applicant purchased a house in 2017 with a mortgage from a bank.  However, after she changed to a new employer, she only received her salary by the end of every month and thus was always late to repay the mortgage.  In order to avoid future penalties, in 2019, she decided to take out a loan from her creditor.  She used some of the loan to prepay the mortgage and gave the rest to her elder sister to repay the creditor for the monthly instalments.  She was able to repay until November 2020 when her employment contract was terminated.  Initially, the creditor gave her three months’ extension.  Nevertheless, after she overstayed in Hong Kong, she defaulted the payments.  In March 2021, her mother informed her that the creditor started chasing for repayments.  From April 2021 to May 2021, the creditor visited her family, assaulted her parents, and posed death threats against her.  Her parents moved to her elder sister’s house to avoid harassments but the creditor managed to find them and asked for the applicant’s whereabouts.  As her mother informed her of the continuous threats from the creditor, 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 11 July 2022 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) her adduced evidence did not establish substantial grounds to believe that there would be a real or foreseeable risk upon her return [13]; (ii) there was no evidence that the creditor could locate her everywhere in the Philippines [14]; (iii) state protection would be available to her [15]; and (iv) internal relocation was a viable option [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 November 2022, the Board conducted an oral hearing for her appeal.

9.The Board recapped the applicant’s claim and her personal background [23].  It noted that the applicant was evasive to many questions put to her and that she was not a reliable witness [31].  In particular, the Board highlighted that the applicant contradicted herself as to whether she was given the loan agreement and, in any event, she failed to provide one; that she was inconsistent about the terms of the loan; that she failed to explain why the creditor would assault her father if her evidence was that the creditor only targeted her; that she was evasive as to whether she actually saw the pictures of her father’s injuries; that the threats from the creditor were merely hearsay evidence; that she could not explain why they did not seek protection from the police; that the subject dispute was a private loan dispute; that she also stated that she wished to leave Hong Kong and visited her family as soon as possible which contradicted her indicated intention to seek protection; and that she delayed in seeking the protection.

10.In any event, the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [41].  Meanwhile, internal relocation and state protection would be available to her [42]-[43]; [57]-[59].

11.For the above reasons, 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 30 January 2023 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant did not set out any specific ground.

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 Decision 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, for the reasons given in paragraph 9, supra, rejected her evidence in support of her claim and dismissed her appeal.

18.There is no valid ground from the applicant to challenge the Board’s Decision.

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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 10^th day of August 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