Ducusin Gemma Lumapat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 956/2019

[2023] HKCFI 2444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 956 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 present 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 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her and she appeared before the Court on 1 February 2023.

The applicant

3.The applicant is a national of the Philippines. She had been a foreign domestic helper. Her last employment contract permitted her to stay until 16 July 2016. On 24 April 2016, her employment contract was prematurely terminated. She did not depart within the time limit and had overstayed since 9 May 2016. On 30 November 2016, she surrendered to the Immigration Department. On 23 February 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by a creditor.

4.In brevity, the applicant claimed that she suffered from blood cancer stage one. For her medical treatments, she took out two loans from the creditors. Since 2012, she had been remitting money to her partner to settle the loans. Yet, she later found out her partner had never repaid the loans. From 2016 to March 2017, she constantly received phone calls of death threats from some men. In around 2017, she also suspected that her partner’s death was caused by the creditor who she believed to be a member of the New People’s Army. Out of fear, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 4 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.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 [11]-[12]; (ii) state protection would be available to her [13]-[15]; and (iii) internal relocation was a viable option [16]-[18].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [24].

8.Having considered the applicant’s claim, her personal background, her oral testimonies and a letter sent dated 19 February 2019 by the applicant [8]-[37], the Board made the following findings. At the outset, the Board rejected the applicant’s claimed blood cancer as it was not supported by any evidence nor was the applicant’s explanation credible [40]. It noticed that the applicant gave inconsistent evidence as to the duration of her hospitalization [41]. It also noted that the applicant’s evidence about the treatments and tests she received was confusing and inconsistent [42]. Further, on the applicant’s evidence, there was a period of six or seven years that she did not receive any medical treatments or tests in Hong Kong for the alleged blood cancer [43]. Without any supporting medical documents [44], the Board refused to accept that the applicant was diagnosed of blood cancer.

9.Meanwhile, the Board found that the applicant’s claim of her partner’s death was not credible [45]-[46]. Her evidence about the contact with the creditor was also inherently inconsistent [47]. In these premises, the Board concluded that the applicant’s claim was simply not credible [48].

10.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

11.The applicant has filed Form 86 dated 9 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 said that she was not given the opportunity of submitting her written submissions, and the Board had held no oral hearing. She also said that the Board had relied on sources of news which is not officially recognized or it is simply hearsay and outdated cases, resulting in its making groundless speculations that it is safe for her to return to her country.

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. Before me, the applicant said that the hearing before the Board was fair. She is not feeling well and if she is well enough, she will go back to her own country.

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 grounds raised in paragraph 12, supra, do not assist her application. There had been a hearing before the Board. She was at liberty to make submissions, either oral or in writing, to the Board. The other grounds are only her bare assertions without any evidence in support.

17.The applicant has raised no valid ground to challenge the Board’s Decision. 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 3^rd day of October 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