Mapait Jennifer Sacman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1135/2019

[2023] HKCFI 2488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1135 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 was granted two employment contracts as foreign domestic helper in 2012 and 2014 respectively. Her second employment contract was prematurely terminated on 10 January 2015. She was only allowed to stay until 24 January 2015.  On 11 February 2015, she applied to stay in Hong Kong as a visitor and was granted a permission to stay until 24 February 2015, which was further extended to be until 23 March 2015.  She did not depart and had overstayed since 24 March 2015.  Her immigration records also showed that she was arrested twice, including offences of “ill-treatment or neglect by those in charge of child or person under 16” and of “breach of condition of stay by taking up unapproved employment”.  On 13 April 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the creditor and her husband.

5.According to the applicant, in order to support her family, she borrowed money from her neighbor Maria, whose husband was a director in the land transportation office, and from a finance institution referred by the employment agency.  When she arrived in Hong Kong, the first four months’ salary were paid to the financial institution and to Maria for the loan interests.  In the fifth month, she had to pay for her children’s medical fee, resulting in her failure to repay the finance institution.  In late March 2014, her employment contract was prematurely terminated.  On 3 April 2014, she returned to her home village.  Upon her arrival, Maria and the finance institution had been chasing her for repayments with threats.  Her husband was also furious about the loans and slapped her.  Thereafter, she flew to Hong Kong for her second employment.  Yet, due to the expenses occurred in the past few months before she left, her salary from the second employment was still insufficient to settle the debts.  From her mother, the applicant learnt that Maria and the finance institution had been threatening and harassing her family.  Feared that the death threats would materialize, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 11 of the Notice of Decision dated 21 November 2017 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 evidence of the past events indicated an unlikelihood of the claimed future risk of harm [20]-[23]; (ii) state protection would be available to her [24]-[27]; and (iii) internal relocation was a viable option [28]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 October 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter qualified in Tagalog and English languages [11]. 

9.The Board recapped the applicant’s claim and her personal background [21]-[38].  It also summarized the applicant’s oral evidence given during the hearing [51]-[65].  It proceeded to make the following findings.  First, there was no credible evidence that the applicant’s husband would inflict any harms on her if she was refouled [67]-[71].  Secondly, while it accepted that the applicant might borrow a loan from Maria, it refused to accept that it was a sum as claimed by the applicant or that Maria possessed the intention to harm or kill her [72]-[75].  Thirdly, there was no evidence that the finance institution had ever intended to harm or even kill the applicant [76]-[78].  As a result, the Board concluded that the applicant would not face any real risk of harm if refouled [79].

10.For 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 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant only attached a copy of the Board’s Decision, but she did not set out 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 had, for the reasons given in paragraph 9, supra, rejected the applicant’s evidence and found that she failed to establish that she will be subjected to real risks of being harmed or killed if she returns to the Philippines.

17.The applicant has raised 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.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 10^th 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