Uy Sheryl Ortiguero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1137/2019

[2023] HKCFI 2803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1137 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 23 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 last entered Hong Kong on 24 April 2012 as a foreign domestic helper. Her permission to stay was later extended to 24 June 2014 or two weeks after the termination of the employment contract. On 5 August 2013, her employment contract was prematurely terminated. She did not depart and had overstayed since 20 August 2013. On 5 November 2013, she attempted to apply for an extension of stay but her application was refused. She was also found to have overstayed in Hong Kong. On 23 December 2013, she was convicted for overstaying. On 17 March 2014, she lodged a non-refoulement claim. However, the Immigration Department was unable to contact her to take further actions on her claim. Thus, on 30 December 2016, her claim was closed. On 13 February 2018, she requested to resume the processing of her non-refoulement claim. Her claim was based on a fear of harm that she would be imprisoned upon refoulement because of an outstanding loan.

5.In short, the applicant borrowed a loan of 60,000 pesos from a local bank for her employment agency fee in 2011. The loan agreement denoted that she was required to pay the principle loan and a monthly interest of 10%. In May, June, July and August 2012, she managed to repay 1,000 pesos each month. However, her employment contract was later terminated. Worse still, she needed to afford her father and brother’s medical expenses, as well as taking care of her brother’s two children. As a result, she was unable to settle the loan. In 2013, the applicant’s sister informed her of a phone call from the bank staff. Yet, the applicant’s sister could not help with her loan. In 2015, her sister told her that the bank staff visited her sister’s house with some policemen asking for repayment, which was later followed with a second visit in 2017. The bank staff further informed her sister of the consequence of an imprisonment in the event of default. Out of fear, 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 29 October 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. In elaboration, the Director found that (i) the level of risk of harm upon her refoulement was assessed to be low [12]; (ii) state protection would be available to her [13]-[18]; and (iii) internal relocation was a viable option [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 25 February 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of a Tagalog interpreter [13].

9.Having considered the evidence, the Board found that her evidence was unreliable [38]. For example, the applicant was inconsistent about the sum of the loan [39]; she was vague about the details of the bank and was unable to produce the copy of the loan documents [40]; her evidence about ceasing the contact with her family members departed from the information she provided as to her sister and from the statements she gave to the Director [41]; her evidence about the contact with her sister was confusing, contradictory and unconvincing [42]; her response about not possessing the messages with her sister was illogical [43]; her evidence about the information relating to whether there was a guarantor to her loan was also inconsistent [44]-[46]; and it was implausible that the police would wish to locate her with the bank staff as she had not claimed to engage in any criminal activities [47]. In these circumstances, the Board concluded that the applicant’s credibility was in doubt and her evidence could not be accepted [48]-[51].

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 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 said that she does not want to go back to the Philippines as it is not safe there she is unable to cope with her problems there as she had a lot of loans. She asked the Court to allow her to stay in Hong Kong.

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 given above, had rejected her evidence on the facts of her case. The applicant therefore has no factual basis in support of her claim.

17.The applicant has raised no valid ground to challenge the Board’s Decision.

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 9^th day of November 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